‘DearBuds SE’ END USER LICENSE AGREEMENT FOR LINKFACE SOFTWARE (EULA)
READ THIS INFORMATION BEFORE USING YOUR PRODUCT.
Read carefully this End User License Agreement (the "Agreement") before using Linkface manufactured or branded wearable devices such as Dear and DearBuds series (collectively, “Wearable Device”), and Linkface wearable device manager applications (collectively, “DearBuds Connect”) as it contains important information.
Important Legal Information
Important legal and health and safety information can also be accessed in writing on the mobile device or on www.dearbuds.com
IMPORTANT. READ CAREFULLY:
This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Linkface Co., Ltd. (“Linkface”, “we”, “us”) for software, whether pre-installed or downloaded, that is owned by Linkface and/or its affiliated companies and its third party suppliers and licensors, that accompanies this EULA, which includes software, associated media, content, data, printed materials, and electronic documentation in connection with your use of the Linkface Product, which will be defined below (“Linkface Software”).
By using this device or any other Linkface Product, including wearable devices, accessories, and mobile phones and tablets running on the Android or other Linkfaceo perating system (“Product”), you accept the terms of this EULA. If you do not accept these terms, do not use the Product or the Linkface Software.
If you are under the age of 13, you may not license or use this software. If you are a Minor 13 or older but younger than 18 (“Minor”), you represent that you have reviewed this EULA with your parent or legal guardian and that you and your parent or guardian understand and consent to the terms and conditions of this EULA. If you are a parent or guardian permitting a Minor to use the Product, you agree to: (i) supervise the Minor's use of the Product; (ii) assume all risks associated with the Minor’s use of the Product, (iii) assume any liability resulting from the Minor’s use of the Product; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor; and (v) assume responsibility and are bound by this EULA for the Minor’s access and use of the Product.
The Manager is a software program to connect your mobile device (the “Device”) to Wearable Device and let you manage, control or update the software of the Wearable Device through the Device. The Wearable Device requires the use of preloaded software in its normal operation. By using the Wearable Device, the Manager or its preloaded software, you accept the terms of this Agreement. If you do not accept these terms, do not use the Wearable Device, the Manager or its preloaded software.
GRANT OF LICENSE
Linkface grants you a limited non-exclusive license to install, use, access, display and run one copy of the Linkface Software on a single Product, local hard disk(s) or other permanent storage media of one computer and you may not make Linkface Software available over a network where it could be used by multiple computers or Products at the same time. You may make one copy of the Linkface Software in machine readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original.Certain items of the Linkface Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA. We will make the applicable open source licenses available to you on the legal notices section of the Settings menu of your Product.
RESERVATION OF RIGHTS AND OWNERSHIP
Linkface reserves all rights not expressly granted to you in this EULA. The Linkface Software is protected by copyright and other intellectual property laws and treaties. Linkface or its suppliers own the title, copyright and other intellectual property rights in the Linkface Software. The Linkface Software is licensed, not sold.
LIMITATIONS ON END USER RIGHTS
You shall not, and shall not enable or permit others to, copy, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Linkface Software (except and only to the extent that such activity is expressly permitted by applicable law not withstanding this limitation), or modify, or disable any features of, the Linkface Software, or create derivative works based on the Linkface Software. You may not rent, lease, lend, sublicense or provide commercial hosting services with the Linkface Software. You may not transfer this EULA or the rights to the Linkface Software granted herein to any third party unless it is in connection with the sale of the Product which the Linkface Software accompanied. In such event, the transfer must include all of the Linkface Software (including all component parts, the media and printed materials, any upgrades, this EULA) and you may not retain any copies of the Linkface Software. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Linkface Software must agree to all the EULA terms. Where Product is being used by your employee or other person using the Product as part of your undertaking (“Your Staff”), that member of Your Staff is licensed to use the Linkface Software as if it were you and must comply with these terms on the same basis. Any failure to comply with these terms by Your Staff shall be deemed to a failure to comply with these terms by you.
LINKFACE SOFTWARE UPDATES
Linkface may make available to you updates, upgrades, supplements and add-on components (if any) of the Linkface Software, including bug fixes, service upgrades (parts or whole), and updates, the removal of, or enhancements and feature improvements to any Linkface Software (including entirely new versions), (collectively “Updates”) after the date you obtain your initial copy of the Linkface Software. This EULA applies to all and any component of the Updates, unless we provide other terms along with such Updates. To use Linkface Software provided through the Updates, you must first be licensed for the Linkface Software identified by Linkface as eligible for the Updates.
The services and/or features provided by Wearable Device may vary or be limited depending on your country, Device model or network operator.
The Wearable Device and Manager may contain, or may be compatible with certain Software for general wellness and fitness management (“DearBuds Connect Software”). The Wearable Device and the DearBuds Connect Software is intended for recreational purpose only, and is not intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease or any other medical purposes.Certain data derived from the DearBuds Connect Software is for informational purposes only and is not intended to be treated as a medical device nor replace the relationship between you and your physician or other medical provider. Do not disregard professional medical advice nor delay in seeking it because of something you have learned through the DearBuds Connect Software.
Linkface is not liable for any injuries, damages, losses and/or costs suffered by users, which are associated with the services and/or information, including recommendations, coaching, tips and/or guidelines, nor for the accuracy of any information provided or acquired by or accessed through DearBuds Connect Software. Linkface is not responsible for the accuracy of information contained in any articles or materials appearing on external third party websites or reference materials, or for the security or safety of using them. Reference to information contained on external third party websites or reference materials should be taken neither as an endorsement of the accuracy of that information nor as an endorsement of the contents of that site or reference generally.
Third party services may also be available to you. Linkface disclaims any warranty or representation to the DearBuds Connect Software and any third party services’ contents , accuracy, completeness, effectiveness, compliance of any applicable laws or regulations.
You may update the Software of the Wearable Device by using the Manager. Linkface may provide to you or make available to you Software updates to the Wearable Device (the “Update”), including without limitation bug fixes, service upgrades, upgrades and enhancements to any software previously installed in your Wearable Device. To use the version provided through such Update, you must first be licensed for the software eligible for Update. The updated version may add new functions and, in some limited cases, may delete existing functions. While the Update will be generally available, in some limited circumstances, the Updates will only be offered by your network carrier, and such Updates will be governed by your contractual relationship with your network carrier. Update for security software or critical bug fixes or other important Updates may be automatically downloaded and installed given the importance of receiving such Updates in a timely manner.
CONSENT TO USE OF DATA
- To provide Updates, you agree that Linkface and its affiliates may collect and use technical information gathered as part of the product support services related to the Software provided to you, if any, such as Serial number, device number, model name, customer code, access recording, your device's current software version. Linkface may use this information to improve their products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
- Device Identifier-based Services. To facilitate the use of enhanced messaging and file sharing functions with a simplified set up process, device identifier-based services for file sharing features and messaging features (“Device Identifier-based Services”) are provided within the Linkface Software. These features are available through existing interfaces of Contacts and Messages, respectively, as additional features to them. If you opt-in to Device Identifier-based Services, certain unique identifiers for your Product are needed to set up and use these features. These unique identifiers may include hardware identifiers, subscription information and telephone number for your Product. If you allow sharing of Contacts information, the telephone numbers of the people in your Contacts are collected by Linkface to facilitate file sharing and messaging with the people in your Contacts. You may turn off this sharing feature or restrict the scope of the sharing under your profile settings. If your message cannot be sent as a message using the Device Identifier-based Services, your message may be sent as an SMS or MMS message, for which carrier messaging rates may apply.
Some features of the Linkface Software may require your Product to have access to the Internet and may be subject to restrictions imposed by your network or Internet provider. Unless your Product is connected to the Internet through Wi-Fi connection, the Linkface Software will access the internet through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the Linkface Software may be affected by the suitability and performance of your device hardware or data access.
You acknowledge that the Linkface Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Linkface Software, including all the applicable export restriction laws and regulations.
This EULA is effective until terminated. Your rights under this License will terminate automatically without notice from Linkface if you fail to comply with any of the terms and conditions of this EULA. Upon termination of this EULA, you must cease all use of the Linkface Software and destroy all copies, full or partial, of the Linkface Software. Section 5, 9, 10, 13, 14, 15, 16 and 17 of this EULA shall survive any such termination.
LINKFACE WARRANTS THAT LINKFACE’S DEVICES AND ACCESSORIES ARE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY ACCOMPANYING YOUR PRODUCT, ALL LINKFACE SOFTWARE PROVIDED BY LINKFACE WITH THIS MOBILE DEVICE (WHETHER INCLUDED WITH THE DEVICE, DOWNLOADED, OR OTHERWISE OBTAINED) IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND FROM LINKFACE , EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, LINKFACE DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LINKFACE OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY LINKFACE OF WARRANTY REGARDING LINKFACE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM LINKFACE .YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE LINKFACE SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE LINKFACE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. LINKFACE DOES NOT GUARANTEE OR WARRANT THAT ANY INFORMATION, DATA OR CONTENT YOU MAY TRANSFER, STORE OR ACCESS THROUGH USE OF THE LINKFACE SOFTWARE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL, AND LINKFACE SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. IT IS SOLELY YOUR RESPONSIBILITY TO MAINTAIN APPROPRIATE ALTERNATE BACKUP OF YOUR INFORMATION AND DATA.
Certain third party applications or services may be included with, or downloaded to your Product. Such third party applications or 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 websites. By using the Linkface Software, you acknowledge and agree that Linkface is not responsible for the availability of such Third Party Materials and is not responsible or liable for any content, advertising, products, services, or other materials on or available from such Third Party Materials.
LINKFACE DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD PARTY MATERIALS PROVIDER. LINKFACE EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER YOUR PERSONAL INFORMATION IS CAPTURED BY ANY THIRD PARTY MATERIALS PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD PARTY MATERIALS PROVIDER.
Certain Linkface applications and services may be included with, or downloaded to, your Product. The Linkface Software may enable access to Google or Apple’s Apps Store or other Linkface and third party services and web sites (collectively and individually, “Services”). Some of the Services and applications may not be available in all languages or in all countries. Many of them may require Linkface Services membership registration (“Linkface Account”), and your rights and obligations in relation to the Linkface Services will be set forth in separate Linkface Account terms and conditions. There are non-Linkface Account applications and services that may require your consent to their separate terms and conditions before accessing or using those applications and services. You expressly acknowledge and agree that your use of such applications and services will be subject to the applicable terms and conditions of the non-Linkface Account applications and services. This EULA will not affect your legal relationship with such non-Linkface Account applications and services providers.
You acknowledge and agree that you are solely responsible for your decision to rely on a digital certificate issued by either Linkface or a third party and your use of such certificate. Linkface makes no express or implied warranties or representations as to merchantability or fitness for any particular purpose, accuracy, security, or non-infringement of third party rights with respect to digital certificates.
Remaining EULA documents are available at dearbuds.com. Please check!!!
LIMITATION OF LIABILITY
LINKFACE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE LINKFACE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF LINKFACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND YOU AGREE THAT YOU WILL USE THE SOFTWARE PRODUCT AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR SOME OTHER TYPES OF LOSS, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, LINKFACE’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE LINKFACE SOFTWARE OR THIRD PARTY APPLICATIONS ON THIS MOBILE DEVICE, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE AMOUNT PURCHASER PAID SPECIFICALLY FOR THIS MOBILE DEVICE OR ANY SUCH THIRD PARTY APPLICATION THAT WAS INCLUDED WITH THIS MOBILE DEVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 9, 10, 11, 12 AND 13) SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
U.S. GOVERNMENT END USERS RESTRICTED RIGHTS
The Linkface Software is licensed only with “restricted rights” and as “commercial items” consisting of “commercial software” and “commercial software documentation” with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Linkface Software is provided only with “restricted rights” with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Linkface Software are provided subject to Federal Acquisition Regulation (FAR) 52.227.19.
This EULA shall be governed by and interpreted in accordance with the laws of the State of New York, USA without reference to its conflict of law provisions. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Linkface may apply for injunctive remedies (or an equivalent form of urgent legal relief) in any jurisdiction.
This is a binding legal agreement (“Agreement”) between you (either an individual or entity) and Linkface . Opening the Product packaging, use of the Product, or retention of the Product constitutes acceptance of this Agreement, regardless of whether you are the original purchaser, user, or other recipient of the Product.You and Linkface each agree that, subject to Linkface’s right to apply for injunctive remedies set forth in Paragraph 15 above, all disputes between you and Linkface relating in any way to or arising in any way from the Standard Limited Warranty or the sale, condition or performance of the Product shall be resolved exclusively through final and binding arbitration, and not by a court or jury. Any such dispute shall not be combined or consolidated with a dispute involving any other person’s or entity’s product or claim, and specifically, without limitation of the foregoing, shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law.The arbitration shall be conducted according to the American Arbitration Association (AAA) Commercial Arbitration Rules applicable to consumer disputes. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. This Agreement is entered into pursuant to the Federal Arbitration Act. The laws of the State of New York, without reference to its choice of law principles, shall govern the interpretation of the Agreement and all disputes that are subject to this Agreement. The arbitrator shall decide all issues of interpretation and application of this Agreement.For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less (“Small Claim”), the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, but may not grant Linkface its attorney fees, expert witness fees or costs unless it is determined that the claim was brought in bad faith. In a Small Claim case, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees, or $50.00 of such fees, whichever is less, and Linkface shall pay the remainder of such fees. Administrative, facility and arbitrator fees for arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00 (“Large Claim”) shall be determined according to AAA rules. In a Large Claim case, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs to the extent allowed by the applicable law. Judgment may be entered on the arbitrator’s award in any court of competent jurisdiction.This Agreement also applies to claims against Linkface’s employees, representatives, parents, and other affiliates if any such claim relates to or arises from the EULA, Standard Limited Warranty, or the Product’s sale, condition or performance.
ENTIRE AGREEMENT; SEVERABILITY
This EULA is the entire agreement between you and Linkface relating to the Linkface Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Linkface Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.