Terms of Service

Contents

• Definitions
• Software and Service
• Your Obligations
• Title and Copyright
• Updated Versions
• Restrictions on Transfer
• Maintenance and Support
• Disclaimer
• Limitation of Liability
• Termination
• Mediation
• Governing Law

These terms form the legal agreement between you and Smilin’ Joe Fission.

Confirming that you accept these terms, or installing or using the Software or accessing the Service constitutes your acceptance of all of the terms and conditions of this Agreement.

If you do not agree with all of the terms and conditions of this Agreement, you must not confirm your acceptance, in which case you will not be authorized to install or use the Software or access the Service.

Definitions

"Phone" means a mobile telephone using the Software / Service.

"Service" means the service enabled by the Software which transmits requests to our server and Amazon, and transmits responses back to your Phone.

"Software" means the Amazon-OnTheGo client software together with any accompanying documentation and material.

"we, us and our" means Smilin’ Joe Fission.

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Software and Service

Subject to all of the terms and conditions of this Agreement, we grant you a personal, non-exclusive, non-transferable license to access and use the Service to gather information from Amazon.

You acknowledge that you must install the Software on a Phone in order to use the Service and that you are responsible for downloading and installing the Software.

While we have taken reasonable precautions to ensure that the Software is virus-free, we cannot and do not guarantee that the Software will be free of all viruses.

You will most likely incur data transfer charges in connection with your mobile phone service. You are responsible for any and all such charges.

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Your Obligations

By accepting this Agreement, you undertake:

• For the duration of this Agreement, to comply with all terms, applicable laws and regulations governing your use of Amazon and the Service;
• Not to disassemble, decompile or reverse engineer the Software or the Service or otherwise attempt to derive the source code from the Software (or the underlying structure, sequence, organization or algorithms), except to the limited extent expressly permitted by applicable law;
• Not to reproduce (except in random access memory), translate, modify, lease, rent, loan, redistribute, sub-lease, sub-license or create derivative works of the Software or the Service;
• To reproduce and not remove, modify or obscure any copyright notice, trademark or any other proprietary notice that we place in the Software as it appears in the Software;
• Not to defame, abuse, harass, stalk, threaten or otherwise violate the rights of others by your use of the Software or the Service;
• Not to publish, distribute and/or disseminate any harmful, vulgar, obscene, indecent, unlawful, libelous, profane, defamatory, infringing, inappropriate, hateful or racially, ethnically or otherwise objectionable material or information via the Software or the Service;
• Not to allow the of any materials that contain in any form software viruses or programs such as Trojan horses, worms, time bombs, cancel-bots, computer code, files or programs designed to interrupt, destroy or limit the functionality of the Software, the Service or any other computer hardware, software or telecommunications equipment;
• Not to attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
• Not to use the Service or the Software in an unlawful manner or in any other manner that might damage, disable, overburden or impair the Software, the Service or any other third party computer hardware or software;
• Not to use the Service or the Software in any manner that violates any law or regulation or might infringe any patent, trade mark, copyright, rights of privacy, rights of publicity or any other rights of third parties; and
• Not to interfere with any third party's use or enjoyment of the Software or the Service.

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Title and Copyright

The Software and the Service are proprietary to us and/or our licensors. All right, title and interest in and to the Software and the Service and all copyright, trade secret rights, patents, trademarks and any other intellectual property or proprietary rights of any kind existing anywhere in the world now or in the future in and to the Software and the Service, and all copies of the Software regardless of the form or media on which it exists, shall at all times remain the exclusive property of us and/or our licensors.

All rights not expressly granted under this Agreement are reserved by us.

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Updated Versions

The Software and the Service may be updated or upgraded from time to time by us at our sole discretion. We may, but are under no obligation to, provide you with any updates or upgrades. Any updated or upgraded versions of the Software and/or the Service will be subject to the terms stated by us as prevailing at the time.

All updated versions of the Software and the Service shall remain subject to the terms of this Agreement unless varied pursuant to the previous paragraph. You acknowledge that you are responsible for downloading and installing such updated versions of the Software and the Service. We maintain the right to withdraw support for out of date versions of the Software and the Service.

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Restrictions on Transfer

The license granted under this Agreement is personal to you, and neither your rights nor any copy of the Software may be sold, assigned, distributed, transferred or sublicensed by you to any other person, in any form (including electronic media), without our prior written consent. Any transfer other than in accordance with this paragraph will be null and void and will automatically terminate your right to use the Service and Software or possess the Software.

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Maintenance and Support

The Software and the Service are provided with extremely limited technical support. We have no obligation to provide maintenance services or additional technical support for the Software or the Service.

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Disclaimer

There will be occasions when the operation of the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment or other causes that are beyond our control. We will take reasonable steps to minimize such disruption where it is within our reasonable control. However, you acknowledge that we will not be responsible for any loss that you may suffer as a result of the Service being unavailable under such circumstances.

You acknowledge that:

• We are not responsible for any connection or access to the Service by you or the quality of the transmission of any information submitted via the Service by you; and
• We have no control over the Amazon web site and cannot therefore accept any responsibility regarding the same; and
• We cannot guarantee that the Software and the Service will work on all makes and models of Phones nor that they will be compatible with all mobile phone networks or be available in all areas.

If, in our reasonable opinion, the Software has damaged your Phone, we shall at our sole discretion, cost and expense either replace that Phone with a suitable equivalent; or pay to you the lesser of $300 or a sum equal to the value of that Phone taking into account fair wear and tear. If we comply with this provision, we will have no further liability to you regarding damage to your Phone arising from use of the Software.

We will not be responsible for any damage caused to your Phone by the Software:

• To the extent that it is attributable to further use of the Phone after giving us notice of the defect;
• To the extent that it is attributable to the use of the Software with third party software; or
• If the damage arises because you failed to follow any instructions given by us as to the installation or use of the Software; or
• If you alter, modify or repair the Software without our written consent.

We will not be responsible for any damage caused to your Phone by the Software unless:

• You give us written notice of the damage within 14 days of the time when you discover or ought reasonably to have discovered the damage; and
• We are given a reasonable opportunity after receiving notice of the damage to examine the Phone and you have (if asked by us to do so) returned the Phone to us at your cost for the examination to take place.

You acknowledge that the Software is experimental and may not functional correctly or at all on all Phones or in all environments. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE AND THE SERVICE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OR ASSURANCES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR FREE FROM INTERRUPTION OR OTHER FAILURES OR THAT THE SOFTWARE OR THE SERVICE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE PERFORMANCE, USE OR RESULTS OF THE USE OF THE SOFTWARE AND THE SERVICE OR THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. YOU ASSUME THE ENTIRE RISK ASSOCIATED WITH YOUR USE OF THE SOFTWARE AND THE SERVICE. This disclaimer of warranty is an essential part of this Agreement.

Some jurisdictions do not allow limitations on implied warranties or conditions, so the above limitations may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction.

Nothing in this Agreement affects your statutory rights.

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Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE, UNDER ANY CONTRACT, BREACH OF DUTY OF CARE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:

• ANY LOSS OF OR INTERRUPTION TO BUSINESS;
• LOSS OF REPUTATION;
• LOSS OF PROFITS OR GOODWILL;
• LOSS OF USE;
• INABILITY TO USE THE SERVICE OR THE SOFTWARE;
• LOSS OR DAMAGE TO OR CORRUPTION OF DATA;
• DAMAGE TO ANY OTHER SOFTWARE, HARDWARE OR OTHER EQUIPMENT;
• THE UNAUTHORISED ACCESS TO OR ALTERATION OF DATA;
• THE UNAUTHORISED DISCLOSURE OF SENSITIVE, VALUABLE, OR CONFIDENTIAL INFORMATION;
• LOSS ATTRIBUTABLE TO YOUR FAILURE TO MAKE AND RETAIN REASONABLE BACK UPS OF YOUR MATERIAL;
• ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR
• ANY COSTS OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS.

Our responsibility to you for death or bodily injury resulting from a breach of our duty to care to you or for fraudulent misrepresentation shall not be limited by any provision in this Agreement. OTHERWISE IF, NOTWITHSTANDING OUR DISCLAIMER OF LIABILITY, WE ARE HELD TO HAVE ANY RESPONSIBILITY TO YOU IN RELATION TO THE SOFTWARE OR THE SERVICE WHETHER UNDER CONTRACT, BREACH OF DUTY OF CARE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, OUR MAXIMUM LIABILITY TO YOU SHALL NOT EXCEED $300.

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Termination

If we reasonably believe that you have failed to comply with any provision of this Agreement, we may terminate this Agreement immediately with or without any prior notice. Termination is not an exclusive remedy and all other remedies will be available to us if you fail to comply with the provisions of this Agreement, whether or not we decide to terminate this Agreement.

We may, at our sole discretion and at any time, and from time to time, modify or discontinue temporarily or permanently providing the Service or any part of the Service or its features with or without notice. You agree we will not be liable to you or any third party for any termination, suspension or modification of the Service.

You may terminate this Agreement at any time by giving us written notice of your intention to do so.

Upon any termination of this Agreement, you shall immediately destroy all copies of the Software in your possession or control and cease all use of the Service. All rights granted to you shall revert to us.

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Mediation

In the event of any dispute, difference of interpretation or controversy or claim arising out of or relating to this Agreement, or the breach thereof, either party shall before initiating any legal action submit such dispute to mediation in accordance with the World Intellectual Property Organization (WIPO) Mediation Rules.

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Governing Law and General Provisions

This Agreement constitutes the entire understanding between us in connection with the licensing of the Software and use of the Service and supersedes and extinguishes all prior and contemporaneous agreements, negotiations and discussions in relation to it. You acknowledge that in entering into this Agreement you do not do so on the basis of, and you do not rely on, any representation (unless made fraudulently) warranty or other provision not expressly contained in this Agreement.

This Agreement may only be modified in writing signed by Smilin’ Joe Fission.

We may assign this Agreement or any part of it to any other person, firm or organization on written notice to you.

If a court decides that any part of the Agreement cannot be enforced, that particular part of the Agreement will not apply, but the rest of the Agreement will continue in full force and effect.

A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions.

Failure or delay in exercising any right under the Agreement shall not prevent the exercise of that or any other right.

No rights are conferred on any third party by virtue of this Agreement.

This Agreement will be governed by the laws of the State of North Carolina without regard to its conflicts of laws provisions and you hereby submit to the exclusive jurisdiction of the state and federal courts of North Carolina. You agree that the United Nations Convention on Contracts for the International Sales of Goods shall not apply to this Agreement.

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