Terms of Use and End User License Agreement

IMPORTANT: PLEASE READ THESE TERMS CAREFULLY. This Terms of Use and End User License Agreement, along with any Terms of Offer appearing on the website, along with any posted rules or instructions, constitute the entire agreement between you and us regarding your use of our websites, products and services as described herein under DESCRIPTION OF OFFERED SERVICES (collectively, the “Services” or “Service”). YOUR USE OF THE SERVICES OR WEBSITE(S) CONSTITUTES ACCEPTANCE OF THESE TERMS OF USE AND END USER LICENSE AGREEMENT, INCLUDING THE PRIVACY POLICY (COLLECTIVELY, "TOU/EULA").

The Service is owned by Omega Partners (which may be referred to herein as "Omega, " "we, " or "us").

We may change any of the terms contained in the TOU/EULA at any time by posting the revised TOU/EULA on this website. If we revise the TOU/EULA, such revision shall be effective immediately after posting the new TOU/EULA on this site. You are responsible for periodically reviewing changes to this TOU/EULA, which you can do by clicking on the "Terms of Use" or similar link. You agree that your continued use of the Service following any changes to this TOU/EULA and after the changes take effect will constitute your acceptance of such changes and your intention to be bound by this TOU/EULA. If you do not agree to such changes to the TOU/EULA, your sole remedy is to discontinue use of the Service and to cancel your account. If you do not agree to be bound by this TOU/EULA, you may not use our Services.

DESCRIPTION OF OFFERED SERVICES
The Services described herein are provided on an AS IS and AS AVAILABLE basis. We disclaim any and all responsibility and liability for the availability, timeliness, security or reliability of the Services which are made available to you for personal, non-commercial, use only. We reserve the right to modify, refuse, suspend or discontinue the Service(s) with or without notice at any time, for any reason, and without liability.

Services and Downloadable Software:

AppGraffiti: A simply dazzling application which provides access to a huge collection ofcolorful backgrounds you can select from and apply to your Facebook®, Twitter® and other profile pages for free. You can change background designs anytime or create your own and share them through the AppGraffiti website.

Our Websites:

AppGraffiti Website: The AppGraffiti website offers free downloads of the AppGraffiti application and access an entirely free gallery of backgrounds to enliven your Facebook®, Twitter® and other profile pages. The AppGraffiti website includes FAQs and allows you to create and share your own background. Log in to your own account to publish your own background designs.

SERVICES/FEES/TERMINATION/REFUNDS/RETURNS

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. We reserve the right to modify, refuse, suspend or discontinue the Service with or without notice at any time, for any reason, and without any liability. Terms related to payment of fees (if any) are specified in the Terms of Offer and may be updated by us from time to time. PLEASE SEE OTHER DISCLAIMERS BELOW.

YOUR ACCOUNT AND USE OF THIS APPLICATION

When you complete the registration process and/or click the "Download" button for any of our Services, you download our software, obtain a software license to use our product, create an account and agree to be bound to this TOU/EULA. If you do so on behalf of an entity of any kind, you are representing and warranting that you have the authority to accept this TOU/EULA on behalf of the entity, and the authority to bind the entity to this TOU/EULA. Your license and account allow you to participate in certain activities on the website.

YOUR CONTENT

YOUR CONTENT IS YOUR RESPONSIBILITY: We disclaim any responsibility related to the content of files uploaded, stored or transmitted by you or other users. Your files are your responsibility: By uploading files, you are assuming full responsibility for the consequences of doing so.

You are solely responsible for your use of the Services. Subject to the terms of this Agreement, you are allowed to post content to the AppGraffiti website such as graphics, photos and other materials that may be viewed on, accessed through, or contributed to the Services. We do not claim ownership of any content you submit, post, transmit or share using our Services.

You shall be solely responsible for your own content and the consequences of submitting, publishing, and/or posting your content with the Services. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions for content you submit, publish, and/or post through use of the Services. You hereby grant us a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, and display the content in connection with the Services pursuant to this Agreement.

You also hereby grant each user of the Services a non-exclusive license to access your content through the Services, and to use, reproduce, distribute, and display such content as permitted through the Services and under this Agreement.

You further agree that content you submit to the Services will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and infringement of intellectual property rights on the Services, and we will remove all content if properly notified that such content infringes on another's intellectual property or other proprietary rights (see more in Digital Millennium Copyright Act and Infringing Material below). We reserve the right to remove content without prior notice.

You are solely responsible for any and all conduct in entering, altering, modifying, sending or retrieving data, text information, screen names, graphics, photos, profiles, audiovisual clips, links or other content submitted, posted, displayed, transmitted or shared using your User Identification.

You consent that we may provide you with required notices, benefits and account information through electronic disclosure via email and postings on our website, or at the email address provided at the time of sign up (or as amended at our website by you from time to time).

CANCELLING YOUR ACCOUNT

Cancellation/Uninstall Procedures: If you decide that you no longer wish to use the Service, account, you can uninstall the software by using the add/remove function within Windows®. This TOU/EULA will automatically terminate when you cancel your account or when we no longer provide the Services. You understand and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with us. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this TOU/EULA or our enforcement or application of this TOU/EULA; (2) the content available through this site or any change in such content; (3) your ability to access and/or use this site; or (4) the amount or type of any fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.

INTELLECTUAL PROPERTY RIGHTS/LICENSE

Copyright Notice. © Omega Partners Ltd., 2014. All rights reserved.

The Service is provided and operated by us. The Service, and all materials accessible through the Services, including websites, website content and information, graphics, code, images, text, illustrations, logos, audio and video files (collectively "Intellectual Property"), are protected by copyrights, trademarks, service marks, or other proprietary rights owned or licensed by us. The compilation (meaning the collection, arrangement, and assembly) of all materials on the Services is our exclusive property and is protected by U.S. and foreign laws and international copyright treaties. Material from the Services may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Use or modification of our Intellectual Property in any form, including but not limited to use on any other website or networked computer environment, without our express written authorization is a violation of our copyrights and other proprietary rights and is strictly prohibited. Any copies of documents contained on this website or portions thereof that you make must include the above copyright notice.

Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU/EULA, all rights are reserved by us.

You may not link to this website, without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion.

Copyright Notice. For more information about intellectual property rights as they relate to content posted on the website and how to report copyright infringement, please visit the Copyright Notice section of our website or click on the Copyright Notice link provided herein.

Trademarks. "AppGraffiti" and other marks, logos, and service names are our trademarks, trade names, and/or trade dress or the trademarks and/or trade dress of our affiliates. None of our trademarks or our affiliates' trademarks may be used in connection with any product or service that is not ours or our affiliates', or in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us or our affiliates. All other trademarks viewable from a search performed using the Service are the trademarks and/or registered trademarks of their respective owners.

YOUR RIGHTS, RESPONSIBILITIES AND RESTRICTIONS

By installing and/or using our Services, including software ("software"), you agree to the following:

i. License. We grant you a non-exclusive license to install and use our software solely for personal use and only for the purpose of accessing the Service. We and our software licensors/suppliers reserve the right to add additional features or functions to the software at any time, without requesting your approval. We may require the update of software on your computer when new versions of the software are released or new enhancements are available. Updates may occur automatically when you use the Service. Changes to this End User License Agreement may be made by us and will be posted on the website. Your continued use of the software will constitute consent to the revised terms. We are under no obligation to support software for which a license has not been purchased and paid for in full. We may at any time suspend or terminate this license and disable the software.

Certain software, such as AppGraffiti, will ask for permission to perform certain functions related to your Facebook®, Twitter® and other website accounts. This may include access to your basic information, posts to your Wall and other functions in order to provide you with full functionality of the software.

ii. Restrictions. You may not reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software for any reason. You may not modify the software in any way. You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), create derivative works or in any way transfer or use the software or use the software for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau. You understand that the software is licensed not sold, and that the software and all rights not expressly granted herein are reserved to us and our licensors/suppliers. We reserve the right to remove or replace any uploaded files, and assume no liability for lost or misplaced file URLs. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of us and our affiliates without our express written consent. You may not use any Meta tags or any other "hidden text" utilizing our name or trademarks or those of our affiliates without our express written consent or that of our affiliates.The materials provided herein are for personal, non-commercial use only. Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU/EULA, all rights are reserved by us. You may not link to this website without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion.

iii. Voluntary Use/Our Collection and use of non-Personally Identifiable Information. Your use of the Services is voluntary. You may stop using and/or cancel any of our Services and uninstall any of our software at any time. By downloading our software, opening an account and/or using the Service, you acknowledge and agree that certain of our software and/or plug-ins may collect and use non-personally identifiable information relating to your use of the Service (such as IP address, browser type, referring URL). For example, certain of our softwarecollects and organizes information about users’ computer usage and the websites visited by users intothe database used to provide the Services. Use of such information issubject to our Privacy Policy.

iv. Export Controls. The software and Services hereunder may be subject to export controls or restrictions by the United States or other countries or territories. You agree to (i) comply with the requirements of the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR) (see http://www.bis.doc.gov) and all applicable international, national, state, regional and local laws, and regulations, including without limitation any applicable import and use restrictions, (ii) not export, or re-export, directly or indirectly, or allow access to the software or Services to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, and (iii) not license, sell, provide or distribute the software or Service or access thereto for use in connection with warfare or terrorism of any kind in any country, chemical, biological, or nuclear weapons or missiles capable of delivering such weapons.

We may discontinue, suspend or modify any of our Services, any feature included in the Services, or the availability of the Services on any particular device or communications service, at any time and without notice to you. If any third party makes an intellectual property infringement claim relating to the Services, we reserve the right to immediately terminate your account, service plan or software license, including all paid or free versions. While not obligated to do so, we will endeavor to communicate any such actions to you by either sending you an email or by posting relevant information to the Websites.

ACCEPTABLE USE POLICY

ILLEGAL, UNAUTHORIZED, OR FRAUDULENT CONTENT OR ACTIVITIES

This Section defines the Acceptable Use Policy ("Policy") relating to the Service. You are responsible for continual compliance with this Policy. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations. We take no responsibility for third party content, nor do we have any obligation to monitor such third party content. Nonetheless, we reserve the right to monitor content at any time for any reason. Further, we reserve the right to remove objectionable or personally identifiable information. We will not be responsible or liable for the exercise or non-exercise of your rights under this TOU/EULA.

For example, you may not use the Services to create, submit, transmit, distribute, provide access to, or store any files, information or material that:

If you become aware of any such activities, you are obligated to immediately notify us.

We reserve the right to suspend or terminate access to the Services upon notice of a violation of this Acceptable Use Policy. Indirect or attempted violations of this Policy, and actual or attempted violations by a third party on behalf of you, authorized by you or not, shall be considered violations of this Policy by you. Upon our determination, in our sole discretion, that you have violated our Acceptable Use Policy, we shall terminate your access to the Service without notice, and to the extent applicable, remove, or disable access to, any material that is in violation of the following or claimed to be infringing or to be the subject of infringing activity.

We have the right, but not the obligation, to monitor any activity or Content associated with the Service. We may investigate any reported violation of our policies and take any action we deem appropriate, including terminating your access to the Service and any associated Content present on the Service without notice to you or recourse by you.

YOUR REPRESENTATIONS

You expressly represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the Service any materials which (i) restrict or inhibit any other user from using and enjoying the Service, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, or (vi) constitute or contain false or misleading indications of origin or statements of fact.

OUR REPORTING

We may report any activity or distribution we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. To cooperate with governmental requests, to protect our systems and users, to ensure the integrity and operation of our business and systems, or in response to subpoenas, court orders, or legal requirements, we may access and disclose any information we consider necessary or appropriate, including your contact details, IP addressing and traffic information, posted content, and web usage paths and may retain such information for appropriate law enforcement officials or other third party enforcement personnel to the extent permitted by applicable federal, state and local laws. By using the Service you expressly consent to the foregoing use and disclosure and to hold us and our affiliates harmless for any such actions.

INDEMNIFICATION

You agree to indemnify, defend and hold us harmless as well as any parent company, subsidiaries, affiliates (and each of our or their officers, directors, managers, employees, agents, representatives, information providers and licensors), against liability related to any claims, costs, losses, damages (actual and consequential), judgments, limitation costs and expenses, demands, including but not limited to reasonable attorney's fees, arising from or in any way related to any alleged violation of this TOU/EULA by you, use of the Services by any other person through you or using your computer or your account or license, claims by third parties related to your use of the Services or in connection with your transmission of any content on or through the Service. This Section shall survive termination of this TOU/EULA.

NO WARRANTY

YOU ARE USING THE SERVICES AT YOUR OWN SOLE RISK AND WE ARE UNDER NO OBLIGATION TO PROVIDE YOU WITH ANY SUPPORT, ERROR CORRECTIONS, UPDATES, UPGRADES AND/OR ENHANCEMENTS OF THE SERVICE.

YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE USER OF THIS WEBSITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS WEBSITE, THE SERVICES AND THE INTERNET GENERALLY.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICES OR INFORMATION OR CONTENT PROVIDED THROUGH THE SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS OR MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR FAULT-FREE; (II) THAT THE SERVICES WILL BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THAT THE SERVICES ARE NONINFRINGING. WE AND OUR AFFILIATES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE US AND OUR AFFILIATES FROM, ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS TOU/EULA OR THE SERVICES.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION), INCLUDING WITHOUT LIMITATION ANY SUCH ACTION ARISING OUT OF (I) USE OF THE SERVICES BY ANY PERSON, INCLUDING BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY INFORMATION, (II) ANY USE OR INABILITY TO USE THE SERVICE FOR WHATEVER REASON, INCLUDING BUT NOT LIMITED TO COMMUNICATIONS FAILURE OR ANY OTHER FAILURE WITH TRANSMISSION OR DELIVERY OF ANY INFORMATION ACCESSED THROUGH THE SERVICE, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED, OBTAINED, OR PARTICIPATED IN, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICES, IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE EXTENT SOME REMEDY IS REQUIRED BY APPLICABLE LAW WITH RESPECT YOUR USE OF THE SERVICES, YOUR EXCLUSIVE REMEDY REGARDING THE SERVICES SHALL BE THE REPLACEMENT OF ANY SUCH SERVICES OR COMPONENT OF THE SERVICES FOUND TO BE DEFECTIVE. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY OR OUR AFFILIATES' CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF DIRECT DAMAGES RELATING TO THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID FOR USE OF THE SERVICES DURING THE ONE-YEAR PERIOD PRECEDING THE CLAIM.

GENERAL PROVISIONS

By accessing or using the Service(s), You:

DISPUTES AND ARBITRATION PROVISION. This TOU/EULA shall be construed, enforced and determined according to the laws of the State of Florida without regard for choice of law provisions. All parties and/or users understand and agree that arbitrations on a class action basis against Company or its affiliates are specifically prohibited and there shall be no right or authority for any Claims to be arbitrated on a class action basis, and all users specifically waive their rights to participate in any such arbitrations on a class action basis. All parties and/or users agreeing to this TOU/EULA for any or all Services agree that any and all disputes, causes of actions or claims arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be fully and finally settled in binding arbitration proceedings under the Rules of Arbitration of the American Arbitration Association in force at the time this Agreement is entered, by one arbitrator appointed in accordance with said Rules, with the specification that any such arbitral award shall be enforceable by any court having jurisdiction thereof. All parties seeking relief are to be bound by this arbitration provision as the sole method to determine any disputes arising from, in connection with, or related to this Agreement, including any actions to enforce or interpret this Agreement. Exceptions: You and we agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy or unauthorized use; and (3) any claim by us for injunctive relief. The arbitration proceeding shall be construed in accordance with the applicable laws of the American Arbitration Association. All Arbitration proceedings shall be held in Ft. Lauderdale, Florida.

All parties and/or users agreeing to this TOU/EULA agree that any and all disputes arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be limited as to discoverable information which is requested pursuant to a subpoena, arbitration, discovery, or any other legal proceeding, by the following:

i) All relevant and discoverable information or data (in any form) shall be strictly limited to the dates of use by the user of the products and services offered hereunder who is requesting any such information. No discovery, including eDiscovery, shall be provided for timeframes outside the timeframe of use of the requesting party, and shall be limited to information or data that is reasonably accessible to us. All parties and users agree that these limitations are reasonable.

ii) All relevant and discoverable information or data (in any form) requested for such applicable dates shall be provided in the format in which it is stored or archived, and shall not be required to be provided in any other format, and no reports of any kind not used regularly in the course of business shall be requested or created/produced.

iii) We may request that parties and/or users cooperate in good faith regarding formulation of appropriate search terms and protocols in advance of any information or data search, including pre-search formulating of search terms, including semantic synonyms, search protocols, and post-search error sampling. Any production shall then be provided referencing such agreed protocols in lieu of individual discovery request responses.

 

Last Updated: May 28, 2014