End User License Agreement
Spoutly End User License Agreement (EULA)
IMPORTANT NOTICE: NO SUPPORT FOR EMERGENCY CALLING: Spoutly does not support or carry emergency calls. Your agreement to the services constitutes acknowledgement that this service cannot be used to contact emergency services.
PLEASE CAREFULLY READ THIS LICENSE AGREEMENT REGARDING THE SPOUTLY VOIP SERVICES AND SOFTWARE. BY CLICKING “I AGREE” AND DOWNLOADING THE SPOUTLY VOIP SOFTWARE, YOU ARE ACCEPTING THIS LICENSE AND YOU ARE AGREEING TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE, PLEASE CLICK ON THE “CANCEL” BUTTON, AND/OR DO NOT DOWNLOAD THE SPOUTLY VOIP SOFTWARE.
This Spoutly End User License Agreement (this “Agreement”) is a legal agreement between you and Spoutly (“Spoutly”) for the use of the Spoutly VoIP services and related applications for the provision of software that provides voice over internet protocol calling services, as well as a video player featuring clips and previews and other video content from Spoutly (“Content”) (collectively “Services”). Download of the Spoutly Software (“Software”™) is necessary to access and use of its Services. You must accept the terms of this Agreement to access the Software and use of its Services.
1. License and Restrictions
License. Spoutly grants, subject to the terms of this Agreement, a limited, personal, non-exclusive, non-commercial, non-assignable, non-sublicensable, license to you (the “User”) to download and install the Software on your computer and/or any other applicable device and to use the Services via your computer or any other device on which the Software is installed. The Software may be installed on a business computer as long as the use is limited to personal use consistent with the terms of the license.
Restrictions on Use: You agree that you shall not, directly or indirectly engage in any of the following activities:
- sell, lease, rent, assign, sublicense or otherwise transfer the Software/Service to any third party or use the Software and/or Service for any commercial or non-commercial purposes;
- modify, duplicate, reproduce or copy the Software, other than one copy solely for your personal archival and back-up;
- make derivative works based upon the Software or any other material made available to you by Spoutly, its affiliates or its vendors;
- use any data mining, robots, or similar data gathering and extraction tools on the Content, frame any portion of the Content, or reproduce, reprint, copy, store, publicly display, broadcast, transmit, modify, translate, port, publish, sublicense, assign, transfer, sell, loan, or otherwise distribute the Content without our prior written consent. You may not circumvent any mechanisms included in the Content for preventing the unauthorized reproduction or distribution of the Content;
- disclose, divulge or otherwise make available the Software or the Service, including without limitation any portion or source code thereof, to any third party except consistent with this Agreement;
- decompile, disassemble, “hack” or otherwise attempt to reverse engineer the Software or any aspect of the Service;
- through the use of any third party software application or otherwise, alter or modify the values stored by the Software in your computer’s memory, on your computer’s hard disk, or in your computer’s registry, or, with the exception of completely uninstalling the Software, otherwise modify, alter or block the functioning of the Software and Service;
- use the Software and/or the Service so as to violate any copyrights, trademarks, patents, trade secrets, other intellectual property rights, privacy or publicity rights, communications regulations or statutes, or any other laws, including without limitation laws concerning defamation, harassment, obscenity, pornography, misrepresentations or omissions;
- use the Software and/or Service to collect or store any information, communication or personal data about or from the users of the Service by monitoring, interdicting or intercepting any process of or communication initiated by the Service or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
- use the Software and/or Service in any manner inconsistent with this Agreement.
Third Parties. You acknowledge and accept that the Software may be bundled or incorporated with other technology or software or products controlled by third parties. Any such third party software or technology or products that incorporates or uses the Software falls within the scope of this Agreement. You may be required to enter into a licensing agreement with those third parties. If you do, your rights and obligations relating to that third party technology or software shall be governed by that agreement.
Software updates and Next Generation Versions: Spoutly reserves the right, in its sole discretion, to provide users with additional features or functions, programming patches or fixes, updates and upgrades, to the Software and/or the Service. The User acknowledges and agrees that Spoutly is under no obligation to make subsequent versions of the Software available to you. The User also agrees that you may be required to enter into an updated version of this Agreement, in the event you choose to download, install or use any new features or functions, programming patches or fixes, updates and upgrades or new versions of the Software.
Suspension or Discontinuation of Services: You acknowledge and agree that it is within Spoutly’s sole discretion to modify, discontinue or suspend your ability to use or disable any version of the Software already installed by you without notice to you for any reason, including repair, improvement, violating normal usage levels, and/or upgrades of the underlying technology or for your breach of any provisions of this Agreement, including but not limited to the restrictions on use set forth in this Paragraph. Spoutly will not accept any liability in relation to direct or indirect damages caused by the release and/or the absence of release of features or functions, programming patches or fixes, updates and upgrades or new versions of the Software and by the suspension or termination of the license or this Agreement by Spoutly or the end User. Normal usage is at our discretion to determine on an ‘at the time’ basis while comparing a given user’s usage to that of most users. Criteria may change at any time and is at Spoutly’s sole discretion.
Paid Services. This Agreement applies to the download, installation and use of the free VoIP Software and Services and the Content. Use of any paid services offered by Spoutly or its affiliates may be subject to additional terms of service or other contractual provisions at Spoutly’s sole discretion.
No Distribution of Software. As set forth in the Restrictions on use provisions, users may not distribute the Software. Spoutly will provide a referral service for users who wish to inform their friends about the Service.
Further Uses. Users who are interested in other uses of the Software or Service or Content must obtain Spoutly written consent, which may require agreement to additional contractual terms.
Promotional Materials. Nothing in this Agreement shall give any user the right to use Spoutly’s Promotional Materials.
2. Utilization of Your computer
Utilization of Your computer. User agrees that the Software may use the processor and bandwidth of the computer (or other applicable device) the User has installed the Software on for the limited purpose of facilitating communication, which may include peer to peer (computer to computer) chat functions, Short Message Service and peer to peer (computer to computer) voice chat. Protection of Your computer. Spoutly will use reasonable efforts to protect the privacy and integrity of the User’s computer resources (or other applicable device) and all communications facilitated by the Software, but the User acknowledges and agrees that Spoutly is providing no warranties, and explicitly disclaims any liability for damages relating to the use of the Software or Services.
3. Privacy and Confidential Information
4. Intellectual Property Rights
Ownership of Intellectual Property. The User acknowledges and agrees that all of the intellectual property, including but not limited to patents, copyrights, trademarks, technology and know-how contained or arising from the Software and Services and Content are and shall remain the exclusive property of Spoutly, its licensors, and any third party whose technology or software or products are bundled in or incorporated into the Software and Services. Nothing in this Agreement shall transfer or vest any such intellectual property rights in the User. Your rights to the Software and Services and Content are limited to the grant of rights set forth in Paragraph 1. You agree you will not take any action to jeopardize, limit or interfere with these intellectual property rights. You acknowledge and understand that all title and intellectual property rights in and to any third party content that is not contained in the Software, but that may be accessed through use of the Software, are the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
5. Use of the Services
Communication. The Software enables the user to communicate with other Software users (computer to computer) and permits the user to access VoIP telephone services (computer to phone).
No Guarantee of Services. Spoutly does not guarantee that you will always be able to communicate (computer to computer) with Software users via the Service or that the Software will always correctly function to provide you the Services. You may experience disruptions, delays or communication-related flaws. Your communications may not always be delivered to other Software users (computer to computer) and VoIP calls placed (computer to phone) may not connect and stay connected for the complete duration of the call. Spoutly explicitly disclaims liability for any such disruptions, delays or other omissions in any communication experienced when using the Software and the Services.
No Responsibility for Communications. You acknowledge and agree that the subject matter or content of any communications made using the Services are entirely the responsibility of the person from whom such content originated. You may be exposed to content that is offensive, graphic, harmful to minors, vulgar or otherwise objectionable. Spoutly is not liable for any type of communication spread by means of the Services.
No Emergency Services. The user recognizes that Spoutly is not a replacement for a primary telephone service, and that Spoutly is not required to offer access to emergency services pursuant to any applicable local and or national rules, regulation or law. The User expressly agrees and understands that the Software does not facilitate, support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency service. Spoutly, its Affiliates and Spoutly’s employees and staff are in no way liable for not providing such emergency calling services. By accepting this Agreement, you acknowledge and agree that alternative arrangements must be made to allow the user to access emergency services the user deems necessary. To access Emergency Services, you accept responsibility for purchasing, separately from Spoutly or elsewhere, some form of traditional wireless or wireline telephone service that provides 24 hour access to emergency calling services.
6. Term and Termination
Term. This Agreement will be in effect as of the date the end User enters into this Agreement by clicking “Accept.”
Termination of this Agreement. Without limiting other remedies, Spoutly may limit, suspend, or terminate this Agreement and access to the Software, Service and Content, prohibit access to the Website and delete the User’s account and/or User ID on an immediate basis for any reason, including breach of this Agreement and any term of the Agreement. Spoutly shall effect such termination by notifying you via the email address provided by the User in the account application, and/or by preventing you from accessing your user account. Spoutly reserves the right to cancel User accounts that have been inactive for more than one (1) year.
Termination by the User. The User may terminate this Agreement at any time, provided the User meets the conditions set forth below.
Activities Upon Termination. Upon termination of this Agreement, you acknowledge and agree that all licenses and rights to use the Software shall terminate, that you will cease any and all use of the Software and that you will remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession and control.
No liability. Spoutly will not be liable for any damage(s) caused by the termination of this Agreement.
7. User Representations and Warranties; Indemnification of Spoutly
Representations. You represent and warrant that you are authorized to enter into this Agreement and can comply with the terms. You further represent and warrant that you will at all times meet with all obligations hereunder, as well as any and all laws, regulations and policies that may apply at any time to the download and use of the Software and Services.
Indemnification. You agree to indemnify, defend and hold Spoutly, its Affiliates, employees and licensees harmless from and against any and all liability and costs, including reasonable attorneys’ fees, arising out of or related to any User’s violation or breach of any term of this Agreement or any applicable law or regulation, violation of any rights of any third party, use or misuse of the Spoutly Software or Services and any communication that occurs via the Software and Services.
Export Restrictions. You acknowledge that the Software may be subject to international rules governing the export of Software. You agree to comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by any national government or applicable authority.
8. Disclaimer of Warranties and Liability
No warranties. THE SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER; SPOUTLY DOES NOT MAKE ANY WARRANTIES, EITHER EXPRESSED, IMPLIED OR STATUTORY, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT WITHOUT LIMITATION TO, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. SPOUTLY DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE AND SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES SPOUTLY WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE VIA SOFTWARE.
No Liability. Software is being offered to the User free of charge. ACCORDINGLY, THE USER ACKNOWLEDGES AND AGREES THAT SPOUTLY, ITS EMPLOYEES, AFFILIATES, AND ITS LICENSORS THAT SPOUTLY WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM THE USER’S OPERATION OF THE SOFTWARE AND SERVICES, AS SET FORTH BELOW.
Limitation of Liability. IN NO EVENT SHALL SPOUTLY, ITS EMPLOYEES, AFFILIATES AND LICENSORS SHALL BE LIABLE, WHETHER FOR CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF SPOUTLY, ITS AFFILIATES, LICENSEES OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Remedy. THE USER’S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO UNINSTALL AND CEASE USE OF SUCH SOFTWARE.
Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to the User. In such event the liability will be limited as far as legally possible under the applicable legislation and all other exclusions and limitations eligible under the law of a specific jurisdiction remain in effect.
Specific Disclaimer of Liability for Emergency Services. Spoutly, its officers, employees and licensees are not liable for any claim, damage, or loss, and the User hereby waives any and all such claims or causes of action, arising from or relating to the use of the Software in attempting to contact emergency services personnel. You shall defend, indemnify, and hold harmless Spoutly, its employees, Affiliates, agents and any other service provider who furnishes services to the user in connection with the Software and the Services, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys’ fees) by, or on behalf of, the User relating to the absence, failure or outage of the Software and Services provided hereunder, including specifically any claims arising out of the failure of Spoutly to offer access to emergency calling services.
Use of Software and Services at User’s Own Risk. The user acknowledges and agrees that to the maximum extent permitted by law the entire risk arising out of the use or performance of the Software remains with the user.
9. General Provisions
New versions of the Agreement. Spoutly reserves the right to modify this Agreement at any time by providing such revised Agreement to the User or by publishing the revised Agreement on the Spoutly website. The revised Agreement shall become effective within thirty (30) days of such publishing or provision to the User, unless the user expressly accepts the revised Agreement earlier by clicking on the accept button. The express acceptance by the User, or the User’s continued use of the Software or the Services after expiry of the notice period of thirty (30) days, shall constitute the User’s acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at http://www.spoutly.com/end-user-license-agreement/. Spoutly reserves the right to make changes to this Agreement from time to time.
Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between the User and Spoutly with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
No waiver. The failure of Spoutly at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Spoutly.
No Assignment by the User. The User is not allowed to assign this Agreement or any rights hereunder.
Assignment by Spoutly. Spoutly is allowed, at its sole discretion, to assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.
Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws or provisions whether contained in Ontario, Canada law or the laws of your current province, state or country of residence.
Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the district of Ontario, Canada.
Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO SPOUTLY THE RIGHTS SET FORTH HEREIN.
End User License Agreement (EULA) Last Amended: November 2016