© 2017-2021 Manifold Cloud Services Ltd. All rights reserved.
This End User License Agreement and Privacy Policy (“EULA”) is a contract between you and Manifold Cloud Services Ltd. and its Affiliates (collectively “MCS”). This EULA applies to your use of this software. By using this software, you acknowledge and agree that you have read, and accept all of the terms and conditions of this EULA. You may not modify this EULA for any purpose.
You acknowledge and agree that this EULA is between you and MCS, and not with any third parties (including, but not limited to, Apple®, Google®, or any mobile carrier), and that MCS is solely responsible for this software.
License Scope
MCS grants to you a license to use this software on a non-transferable, non-exclusive, non-sublicensable basis subject to the rules governing the use of your particular device (for example, the Apple App Store Terms of Use). MCS hereby reserves all rights not expressly granted by this EULA.
Eligibility
To use this software you must be at least 18 years of age and trained perform the task for which this software is being used (in other words a professional). You acknowledge and agree that your use of this software is or will be, strictly consistent with the terms and conditions of this EULA and the applicable laws where this software is being used.
Restricted Use
You may not rent, lease, lend, sell, redistribute, decompile, reverse engineer, disassemble this software, or modify, derive (or attempt to derive) the source code, or create derivative works from this software. All attempts to do so are violations of MCS’s rights and those of its licensors. Additionally, violators may be subject to prosecution and damages.
Use of this software is solely to assist the professional user and is not to replace a professional’s judgment.
SMS Messaging
Intellectual Property Rights
This software uses information, documents, and materials protected by trademark, copyright or other intellectual property laws and treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of MCS and its affiliates are and shall remain the exclusive property of MCS. Nothing in this EULA shall grant you the right or license to use any of these marks.
In the event a third party claims this software or your possession and use of this software infringes upon that third party’s intellectual property rights, MCS, and not Apple (if you downloaded this software to a device using Apple iOS) or Google (if you downloaded this software to a device using the Android operating system), will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Disclaimer of Warranties; Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THIS SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MCS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THIS SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MCS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THIS SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THIS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THIS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THIS SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MCS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THIS SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
Concerning use of this software on a device using Apple iOS, you may notify Apple about the failure of this software to conform to any applicable warranty and Apple will refund the purchase price for this software to you, but to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to this software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty shall be MCS’s sole responsibility.
MCS’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) shall not exceed the amount of fifty dollars ($50.00). The foregoing limitations shall apply even where the above stated remedy fails of its essential purpose.
Indemnification
You agree to indemnify, defend and hold harmless MCS and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorneys’ fees) arising out of your use of this software or the breach of this EULA by you or any other user on your behalf.
Product Claims
You acknowledge and agree that MCS provides this software only and not the hardware. You acknowledge and agree that MCS, and not Apple (if you downloaded this software to a device using Apple iOS) or Google (if you downloaded this software to a device using the Android operating system), is responsible to address your claims or those of a third party relating to this software or your possession and/or use of this software, including, but not limited to: (i) product liability claims arising from use of this software; (ii) any claim that this software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation arising from use of this software.
Legal Compliance
You may not use or otherwise export or re-export this software except as authorized by United States law and the laws of the jurisdiction in which this software was obtained. In particular, but without limitation, this software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using this 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 this software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
Privacy
This section applies to your use of this software and explains what information we collect, how we collect it, for what we use it, how we protect it, and when we disclose it to third parties. If you do not agree with this section, you may not use this software.
Personal Information. We may collect your name, address, e-mail address and telephone number if you provide it to us. We consider your name, address, e-mail address and telephone number to be “Personal Information,” defined as information that can be associated with a specific person or can be used to identify that person. We use this information to provide you with technical support and marketing. If you do not want us to collect Personal Information about you, you can decide not to submit it to us, however we may not be able to provide you with support if we do not collect certain information from you.
Analytics Data. We may collect certain data from the device you are using with this software, but in aggregate form, meaning that we see information and statistics on multiple users at a time, and do not associate the data with anyone’s Personal Information. The information receives includes, but is not limited to: identification of countries where our software is being used, date and time of use, device models utilizing this software, including mobile carriers, version of the operating systems, and the versions of software being used (collectively, “Analytics Data”). We may receive this Analytics Data from the company behind your operating system (for example, Apple or Google), or we may collect this data from your device, including with the help of a third party analytics company. We use this information to provide this software, to provide general statistics regarding use of this software, to improve this software, and as part of research and development intended to improve our technology and services.
Other Information. We may collect and use other information with your consent or as permitted or required by law.
Sharing Information. We may share Analytics Information with third parties sans your Personal Information. However we may share your Personal Information as follows:
When you provide us with consent.
We may share your information to provide you with products, services, or information you requested. We may hire service providers (including affiliates, which are companies controlled by, under common control with, or controlling MCS) to help us with our business, technologies and services. These service providers may provide services such as handling the processing and delivery of mailings, providing customer and technical support, creating or maintaining databases, hosting websites, processing transactions, or performing statistical analysis of our Services. Additionally some of these providers may record telephone calls for record keeping, training and technical support purposes.
We limit the sharing of your Personal Information to only that our providers require to provide support for this software. Our service providers are required to maintain confidentiality, and use reasonable, appropriate measures to protect shared information, and are prohibited from using it for any purpose other than for providing software support in accordance with our instructions and policies. In certain circumstances we may share your Personal Information with governmental entities, or third parties in response to subpoenas, court orders, other legal process, or as we believe is necessary to exercise our legal rights, to defend against legal claims that have been brought against us, or to defend against possible legal claims that we determine in our sole discretion might be brought against us. We may share your Personal Information if we determine, in our sole judgment, that the release of your information may protect the rights, property, or your safety, our safety, or the safety of another person. We may report to law enforcement agencies any activities that we believe to be unlawful, or that we believe may aid a law enforcement investigation.
If we become involved in a merger, acquisition, or any form of sale of some or all of our assets or business, your information may be provided to the entities and advisors involved, for the purposes of determining whether to proceed with the transaction and, where applicable, concluding the transaction. Your Personal Information may be transferred to a successor or assigned as all or part of our assets or business to another who may use and disclose the information for similar purposes as those described in this section.
We do not knowingly allow third parties to collect Personal Information about you through our software.
We use reasonable practices to protect your Personal Information from unauthorized access, use, or disclosure. We use security technologies and procedures to help protect your Personal Information from unauthorized access, use, or disclosure.
However we can’t ensure the security of your Personal Information. Accordingly, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, WE ASSUME NO LIABILITY FOR ANY DISCLOSURE OF DATA (INCLUDING YOUR PERSONAL INFORMATION) DUE TO ERRORS IN TRANSMISSION, UNAUTHORIZED THIRD PARTY ACCESS OR OTHER ACTS OF THIRD PARTIES, OR ACTS OR OMISSIONS BEYOND OUR CONTROL.
Termination
This license is effective until terminated by you or MCS. Your rights under this license will terminate automatically without notice from the MCS if you fail to comply with any term or condition of this EULA. Upon termination, you shall stop using this software and destroy all copies of this software whether full or partial.
All representations, warranties, indemnifications, and limitations of liability contained in this EULA shall survive the its termination; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
Third Party Terms and Beneficiaries
You must comply with all applicable third party terms of agreement when using this software. If you are using this software on a device using Apple iOS, you agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement and upon your acceptance of the terms and conditions of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you as a third party beneficiary thereof.
Miscellaneous
You acknowledge and agree that your rights and obligations under this EULA are not assignable. We may freely assign our rights and obligations under this EULA with or without notice to you. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns. All parties are acting as independent contractors with respect to the activities hereunder.
This EULA and any other documents incorporated by reference constitute the entire agreement and understanding between the parties with respect to the subject matter of this EULA, and they replace any and all prior written or verbal agreements. If any portion of this EULA is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. If MCS fails to insist upon or enforce strict performance of any provision of this EULA, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this EULA. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this or any specific term or conditions hereof.
Dispute Resolution
The terms of this section entitled “Dispute Resolution” will apply to all disputes that may arise out of, are connected with or relate to this EULA or this software, subject only to the following two exceptions: (1) if MCS reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to MCS or any third party, MCS may seek injunctive or other appropriate relief in any court of competent jurisdiction without bond; (2) any dispute may, at the option of the claiming party, be resolved in small claims court in Akron, Ohio, provided that all claims by all parties in the dispute fall within the jurisdiction of the small claims court; or (3) all other actions whether in equity or at law must be brought exclusively in any court within Summit County if in state court; or within Cuyahoga County if in Federal court. All parties hereto waive any objection to venue and irrevocably submits to the jurisdiction of any such court in Summit County or Cuyahoga County whether involving state or federal claims. Furthermore, in no event will the terms of this section limit MCS’s ability to investigate complaints or reported violations of this EULA or to take any action MCS deems necessary and appropriate to mitigate actions against MCS, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
Conditions required before instituting Litigation. If you have any dispute with us or any related third party, arising out of, relating to, or connected with this software, you agree to contact us; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give the MCS thirty (30) days within which to resolve the dispute to your satisfaction. If the MCS does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute as below provided. You agree that you may not institute any suit before complying with this paragraph.
Any claims by the MCS, or claims by you that are not resolved by the informal resolution procedure as provided above, arising out of, relating to, or connected with this EULA or this software must be asserted individually. All parties agree to the exclusive jurisdiction and venue of the courts in Summit County Ohio or the federal court in Cleveland Ohio. Each party hereby waives right to trial by jury.
Maintenance and Support
Please contact us at the information below for customer support. MCS is solely responsible for providing maintenance and support services for this software. Third party operating system providers such as Apple and Google have no obligation to provide maintenance or support services for this software.
Contact Information
Please contact MCS concerning your questions, complaints or claims with respect to this software:
Manifold Cloud Services Ltd.
3425 Gilchrist Rd. Suite B104
Mogadore, Ohio 44260