Terms of Service
Date of Last Update: February 16, 2016.
Welcome to The NEX Band.
Please read these Terms & Conditions below fully and carefully before using www.mightycast.com (the “Site” and the services, features, content or applications including our NEX Band by Mighty Cast) offered by Mighty Cast, Inc. (“we”, “us” or “our”) (together with the Site, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the Site and the Services.
1. Acceptance of Terms
(a) By using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
(b) Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
(c) These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
(a) Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, videos, audio clips, written posts and comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
(b) User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. You may delete or remove your User Content, either yourself or through a request made to one of our employees or affiliates. When your User Content is deleted, it will be removed from the Services. However, you understand that any removed User Content may persist in backup copies for a reasonable period of time (but will not following removal be shared with others).
(c) Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
(d) Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for personal, non-commercial purposes. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from us or from the copyright holder identified in such Content’s copyright notice. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
(e) License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds). You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive license to access your User Content through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content. For clarity, the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
(f) Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. Further, we have no obligation to monitor the Site or the Services. However, we reserve the right to (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
4. Rules of Conduct
(b) You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
(i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy );
(ii) you know is false, misleading, untruthful or inaccurate;
(iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another?s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
(iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
(v) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
(vi) impersonates any person or entity, including any of our employees or representatives; or
(vii) includes anyone’s identification documents or sensitive financial information.
(c) You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
(d) You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
(e) We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
5. Webstore Purchases.
To the extent you use (including purchasing goods on Mighty Cast’s webstore, you acknowledge that all such use is subject to our webstore’s Terms of Sale.
6. Third Party Services.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
7. Apple Device and Application Terms.
If you are accessing the Services via the Applications on a device provided by Apple, Inc. (“Apple”) or the Applications obtained through the Apple App Store, the following shall apply:
(a) Both you and Mighty Cast acknowledge that these Terms are concluded between you and Mighty Cast only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Mighty Cast, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Mighty Cast, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S.Government list of prohibited or restricted parties;
(i) Both you and Mighty Cast acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(j) Both you and Mighty Cast acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
8. In App Purchases.
If you are accessing the Services via the Applications on a device provided by Apple, Inc. (“Apple”) or the Applications obtained through the Apple App Store, you may be able to purchase (“In App Purchase”) certain goods or additional features designed to enhance the performance of the Services (“Goods”). When you purchase Goods, you are doing so through either Apple iTunes service and you are agreeing to Apple’s iTunes Terms and Conditions. We are not a party to any In App Purchase.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your use of the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Warranty Disclaimer.
(a) We have no special relationship with or fiduciary duty to you. You acknowledge that We have no control over, and no duty to take any action regarding:
(i) which users gain access to the Services;
(ii) what Content you access via the Services;
(iii) what effects the Content may have on you;
(iv) how you may interpret or use the Content; or
(v) what actions you may take as a result of having been exposed to the Content.
(b) You release us from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. We make no representations concerning any Content contained in or accessed through the Services, and it will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.
(c) The services and content are provided “as is”, “as available” and without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, employees, agents, suppliers, partners and content providers do not warrant that: (i) the services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the services is free of viruses or other harmful components; or (iv) the results of using the services will meet your requirements. Your use of the services is solely at your own risk. Some states do not allow limitations on implied warranties, so thefore going limitations may not apply to you.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys? fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
12. Limitation of Liability.
In no event shall we, nor our directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the services (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive,compensatory or consequential damages of any kind whatsoever, substitute goods or services(however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) of one hundred U.S.Dollars ($100.00). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.
(a) Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
(b) Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
(c) Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
(d) Governing Law and Jurisdiction. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.
(e) Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com
(f) Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
(g) Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
(h) No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
(i) Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
IMPORTANT: BY USING YOUR NEX BAND, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS:
1. Nex Band SOFTWARE LICENSE AGREEMENT
2. NOTICES FROM MIGHTY CAST
MIGHTY CAST INC.
Nex Band SOFTWARE LICENSE AGREEMENT Single Use License
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR NEX BAND OR DOWNLOADING THE SOFTWARE UPDATE ACCOMPANYING THIS LICENSE. BY USING YOUR NEX BAND OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE NEX BAND OR DOWNLOAD THE SOFTWARE UPDATE.
IF YOU HAVE RECENTLY PURCHASED AN NEX BAND AND YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE NEX BAND WITHIN THE RETURN PERIOD TO MIGHTY CAST OR AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO MIGHTY CAST’S RETURN POLICY.
(a) The software (including embedded software and third party software), documentation, interfaces, content, fonts and any data that came with your Nex Band (“Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by Mighty Cast (“Software Updates”), whether in read only memory, on any other media or in any other form (the Original Software and Software Updates are collectively referred to as “Software”) are licensed, not sold, to you by Mighty Cast Inc. (“Mighty Cast”) for use only under the terms of this License. Mighty Cast and its licensors retain ownership of the Software itself and reserve all rights not expressly granted to you. You agree that the terms of this License will apply to any Mighty Cast-branded app that may be pre-installed on your Nex Band, unless such app is accompanied by a separate license, in which case you agree that the terms of that license will govern your use of that app.
(b) Mighty Cast, at its discretion, may make available future Software Updates for your Mighty Cast Nex Band. The Software Updates, if any, may not necessarily include all existing software features or new features that Mighty Cast releases for newer or other models of the Nex Band. The terms of this License will govern any Software Updates provided by Mighty Cast that replace and/or supplement the Original Software product, unless such Software Update is accompanied by a separate license in which case the terms of that license will govern.
2. Permitted License Uses and Restrictions.
(a) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to use the Software on a single Nex Band. Except as permitted in Section 2(b) below, and except as provided in a separate agreement between you and Mighty Cast, this License does not allow the Software to exist on more than one Nex Band at a time, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Mighty Cast proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with Nex Band. Some of those rights are available under separate licenses from Mighty Cast. For more information on developing third party devices, applications, and accessories for the Nex Band, please contact us at firstname.lastname@example.org.
(b) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download Software Updates that may be made available by Mighty Cast for your model of the Nex Band to update or restore the software on any such Nex Band that you own or control. This License does not allow you to update or restore any Nex Band that you do not control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.
(c) You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provided by the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Software).
(e) You agree to use the Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Software and Services. Features of the Software and the Services may not be available in all languages or regions, some features may vary by region, and some may be restricted or unavailable from your service provider. A Bluetooth connection to a supported iOS device (“Paired iOS Device”) with Wi-Fi or cellular data connection is required for some features of the Software and Services.
(g) Using the Nex Band in some circumstances can distract you and may cause a dangerous situation (for example, avoid using while driving a car or using headphones while riding a bicycle). By using the Nex Band you agree that you are responsible for observing rules that prohibit or restrict the use of mobile phones or headphones (for example, the requirement to use hands-free options for making calls when driving).
(h) The Nex Band and its data and included Nex Band apps are not medical devices and are intended for fitness purposes only. They are not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease.
(i) Before starting or modifying any exercise program using the Nex Band, consult your physician. Be careful and attentive while exercising. Stop exercising immediately if you feel pain, or feel faint, dizzy, exhausted, or short of breath. By exercising, you assume inherent risks including any injury that may result from such activity. If you have any medical condition that you believe could be affected by the Nex Band (for example, seizures, blackouts, eyestrain, or headaches), consult with your physician prior to using the Nex Band.
You may not rent, lease, lend, sell, redistribute, or sublicense the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another party in connection with the transfer of ownership of your Nex Band , provided that: (a) the transfer must include your Nex Band and all of the Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Software reads and agrees to accept the terms and conditions of this License.
4. Consent to Use of Data.
5. Services and Third Party Materials.
(a) The Software may enable access to Mighty Cast and third party services and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services requires Internet access and use of certain Services may require you to accept additional terms and may be subject to additional fees. By using this software in connection with Mighty Cast Services, you agree to the applicable terms of service for that Service.
(b) Maps. The maps service and features of the Software (“Maps”), including map data coverage, may vary by region. When you use any location-based features within Maps, various location-related and usage information may be sent to Mighty Cast, including the real-time geographic location of your Nex Band, in order to process your request and help improve Maps. Such location and usage data is collected by Mighty Cast in a form that does not personally identify you. By using Maps, you agree and consent to Mighty Cast’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of this information, to provide and improve the Maps features and service, and other Mighty Cast products and services. You may disable the location-based functionality of Maps by going to the Location Services setting on your Paired Device and turning off the individual location setting for Maps. Certain Maps features will however be unavailable if you disable the Location Services setting.
(c) You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Mighty Cast, its affiliates, agents, principals, or licensors shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
(d) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Mighty Cast is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Mighty Cast, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
(e) Neither Mighty Cast nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of information, location data, triggered actions (also known as “Hacks”) or any other data displayed by any Services. Location data provided by any Services, including the Mighty Cast Maps service, is provided for basic purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage.
(f) To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services. You agree that the Services contain proprietary content, information and material that is owned by Mighty Cast, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Mighty Cast. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Mighty Cast is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
(g) In addition, Services and Third Party Materials that may be accessed, linked to or displayed on the Nex Band are not available in all languages or in all countries or regions. Mighty Cast makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Mighty Cast and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Mighty Cast be liable for the removal of or disabling of access to any such Services. Mighty Cast may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Mighty Cast if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Software. Sections 4, 5, 6, 7, 8, 11 and 12 of this License shall survive any such termination.
7. Disclaimer of Warranties.
7.1 If you are a customer who is a consumer (someone who uses the Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
7.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MIGHTY CAST AND MIGHTY CAST’S LICENSORS (COLLECTIVELY REFERRED TO AS “MIGHTY CAST” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.4 MIGHTY CAST DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS MIGHTY CAST PRODUCTS AND SERVICES.
7.5 YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
7.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MIGHTY CAST OR A MIGHTY CAST AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL MIGHTY CAST, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF MIGHTY CAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Mighty Cast’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two hundred and fifty dollars (U.S.$250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. Export Control.
You may not use or otherwise export or re-export the Software except as authorized by Canadian law and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. or Canadian embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by Canadian or United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
10. Government End Users.
The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States and Canada.
11. Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the Province of Quebec, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are a consumer based in the United Kingdom, this License will be governed by the laws of the jurisdiction of your residence. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
12. Complete Agreement; Governing Language.
This License constitutes the entire agreement between you and Mighty Cast relating to the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Mighty Cast. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
13. Third Party Acknowledgements.
Portions of the Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Software, and your use of such material is governed by their respective terms.
NOTICES FROM MIGHTY CAST
If Mighty Cast needs to contact you about your product or account, you consent to receive the notices by email. You agree that any such notices that we send you electronically will satisfy any legal communication requirements.