Description of the Software and Services.
Eyefi provides software ("Software") that allows you to wirelessly transfer your photos, videos and related EXIF data (collectively, "Content") between Eyefi wireless memory cards and natively enabled Eyefi cameras (each, an "Eyefi Device") and your computer, mobile device, tablet or other supported Eyefi electronic devices.
Eyefi also offers a variety of services (some or all of which may be subject to additional cost) (collectively, "Services"), which may include without limitation the following services:
- access to your Content through Eyefi websites such as app.eyefi.com or center.eye.fi
- automatic transfer to online sites like Flickr, Picasa or Facebook, or for emailing to your friends or family
- storage on Eyefi's servers for display, sharing, organizing, synchronization, backup or future use
- geotagging of your Content ("Eyefi Geotagging Service")
- wireless transfer through a WiFi Hotspot ("Eyefi Hotspot Service")
Eyefi may in the future offer additional Services which will also be subject to this Agreement.
- Subject to the terms and conditions of this Agreement, Eyefi grants you a personal, worldwide, royalty-free, revocable, non-assignable and non-exclusive license (without the right to sublicense) to download, install, execute and display the Software, in executable object code format only, and to use the Services solely for your personal use in the manner permitted by this Agreement.
- The Software is licensed, not sold. Your use of the Services is limited to the express terms of this Agreement. You may not (and you may not permit anyone else to) (i) license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise utilize the Software or Services as part of a commercial offering, (ii) modify, create derivative works of, dissemble, reverse compile or reverse engineer any part of the Software or Services, (iii) use the Software or Services in order to build a similar or competitive product or service, or (iv) otherwise exceed the scope of the express license granted herein. Except as expressly stated herein, no part of the Software or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical or other means. You may not assign (or grant a sublicense of) your rights to use the Software or Services, grant a security interest in or over your rights to use the Software or Services or otherwise transfer any part of your rights to use the Software or Services.
- The LICENSE text file that accompanies the Software may contain certain third-party notices that Eyefi is required to provide to you in conjunction with the Software. In addition, the LICENSE text file may specifically identify certain software code that is incorporated into or distributed with the Software, but is actually licensed to you under one or more "open-source" or "free software" licenses (the "Open Source Software"). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under (and is not subject to the terms of) this Agreement, and instead is separately licensed to you pursuant to the terms and conditions of their respective open-source software licenses. Copies of such open-source software licenses are reproduced in the LICENSE text file, and you hereby agree to comply with the terms and conditions of such open-source software license agreements.
- If the Software is being acquired on behalf of the United States Government, then the following provision applies. The Software is comprised of "commercial computer software" and "commercial computer software documentation" as such term is used in 48 C.F.R. 12.212 and is provided to the Government only as a commercial end-item (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Software with only those rights set forth herein.
- You acknowledge and agree that Eyefi (or Eyefi's licensors) own all legal right, title and interest in and to the Software and Services, including any intellectual property rights therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Software and Services may contain information which is designated confidential by Eyefi and you agree not to use such information except as expressly permitted under this Agreement or to disclose such information to any third party without Eyefi's prior written consent. There are no implied licenses hereunder, and all rights not expressly granted under this Agreement are reserved to Eyefi.
- Any feedback, comments, or suggestions you may provide regarding Eyefi, the Software or Services ("Feedback") is entirely voluntary. You hereby assign to Eyefi all rights in the Feedback and agree that Eyefi is free to use such feedback, comments or suggestions as it sees fit, including but not limited to incorporation into Software and/or Services, and without any obligation to you.
- You agree that you will not remove, obscure or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained in the Software or Services.
You agree to indemnify and hold harmless Eyefi, including its officers, directors, employees, affiliates, licensors, suppliers, information providers, and agents (collectively "Eyefi Parties"), from and against all losses, claims, liabilities, expenses, damages, and costs, including reasonable attorneys' fees, arising out of or resulting from (a) your use of the Software (and if applicable, the Services), (b) your violation of this Agreement, or (c) your violation of applicable laws or regulations. Eyefi reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify an Eyefi Party and you agree to cooperate with the defense of these claims. You agree not to settle any matter without the prior written consent of Eyefi. Eyefi will use reasonable efforts to notify you of any such claim, action or proceeding for which it desires to exercise its indemnification rights within a reasonable time.
Disclaimer of Warranties.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE AND SERVICES (WHETHER IN WHOLE OR IN PART) IS AT YOUR SOLE RISK, AND THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EYEFI AND ALL EYEFI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SOFTWARE, SERVICES OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER EYEFI NOR ANY EYEFI PARTY MAKES ANY WARRANTY THAT (i) THE SOFTWARE AND SERVICES WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (ii) THE SOFTWARE AND SERVICES ARE OR WILL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS, OR (iii) THE SOFTWARE AND SERVICES WILL MEET YOUR REQUIREMENTS.
- WITHOUT LIMITING THE FOREGOING, EYEFI SHALL HAVE NO OBLIGATION TO YOU IF YOUR CONTENT FAILS TO BE TRANSFERRED OR IS UNUSABLE, DAMAGED, LOST OR OTHERWISE UNAVAILABLE OR NOT ACCESSIBLE. IN NO EVENT WILL EYEFI OR ANY EYEFI PARTY BE LIABLE FOR ANY CLAIM OF ANY NATURE, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO (I) THE DELETION OR CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT TRANSMITTED BY OR THROUGH YOUR USE OF THE SOFTWARE OR SERVICES, OR (II) ANY LIABILITY, LOSS OR DAMAGE INCURRED AS A RESULT OF SUCH CONTENT. YOU USE THE SOFTWARE AND SERVICES AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGES TO YOUR CONTENT OR ANY DAMAGE TO YOUR COMPUTER SYSTEM.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Limitation of Liability.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EYEFI NOR ANY EYEFI PARTY WILL HAVE ANY OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OR LIABILITIES, OR ANY DAMAGES FOR LOSS OF DATA, REVENUE OR PROFIT, ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE AND SERVICES OR THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, EYEFI'S TOTAL AGGREGATE LIABILITY FOR DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE SOFTWARE, SERVICES OR THIS AGREEMENT SHALL NOT EXCEED FIFTY U.S. DOLLARS (U.S. $50). WITHOUT LIMITING THE FOREGOING, THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OR INABILITY TO USE THE SOFTWARE OR SERVICES, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, OR (iv) ANY OTHER MATTER RELATING TO THE SOFTWARE, SERVICES OR THIS AGREEMENT. YOU AGREE THAT OTHER EYEFI PARTIES WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
- SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The Software may automatically download and install updates from Eyefi from time to time. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit Eyefi to deliver these to you) as part of your use of the Software.
Eyefi may engage in continuous efforts to improve the Software and Services and the experience you'll have when you use them. Eyefi reserves the right to modify, suspend or discontinue the Software or Services at anytime. Unless otherwise expressly stated by Eyefi at the time of delivery, any future release, update, or additional addition to the functionality of the Software or Services shall be subject to the terms of this Agreement. You may stop using the Software or Services at any time. You do not need to specifically inform Eyefi when you stop using the Software or Services.
Links to Other Sites.
The Software and Services may enable you to transfer and email Content to other websites or parties ("Third Party Sites"). Eyefi has no control over, and assumes no responsibility for, the practices of any Third Party Sites, and is not responsible for any damage or loss caused in connection with the use of any Third Party Sites or their content. Additionally, Eyefi is not responsible for the information gathering and dissemination practices of any Third Party Sites, and this Agreement does not apply to any Third Party Sites. When you link to Third Party Sites, the applicable third party's terms and policies apply, including the third party's privacy and data gathering practices.
Termination of this Agreement.
This Agreement will continue in effect until terminated by either you or Eyefi as set forth herein.
- You may, in your sole discretion, terminate this Agreement at any time by (i) notifying Eyefi in writing to Eyefi's address which is set out at the beginning of this Agreement, (ii) closing your Account (if applicable), and (iii) discontinuing any further use of the Software and/or Services and destroying any copies of Software in your possession or under your control.
- Eyefi may, in its sole discretion, suspend your rights to use the Software and/or Services or terminate this Agreement (including terminating your Account, if applicable), without notice, if (A) you breach this Agreement, (B) Eyefi is required to do so by law, (C) you engage in conduct Eyefi believes is harmful to other Eyefi users or the business of Eyefi, or (D) Eyefi has elected to discontinue the Software and/or Services. Eyefi will not be liable to you or any third-party for any termination of this Agreement or termination, suspension or limitation of your access to the Software and/or Services.
- Termination of this Agreement, Software, Services and your Account may include any or all of the following: (i) removal of access to all or part of the Services, (ii) deletion of your password and all related information, files and content associated with your Account, and (iii) barring of further use of all or part of the Software and/or Services.
- The Agreement constitutes the entire agreement between you and Eyefi regarding your use of the Software (and, if used, the Services) and supersedes all prior and contemporaneous written or oral agreements between you and Eyefi. However, you may also be subject to additional terms and conditions that apply when you use or purchase other Eyefi services, which Eyefi will provide to you at the time of such use or purchase.
- You agree that Eyefi may provide you with notices, including those regarding changes to the Agreement, by email, regular mail or postings on the Software or Services.
- The failure of Eyefi to exercise or enforce any legal right or remedy which is contained in this Agreement (or to which Eyefi has the benefit under any applicable law) will not constitute a waiver of such right or remedy. If any provision in this Agreement, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision will be enforced to the maximum extent possible, or, if incapable of such enforcement, will be deemed to be deleted from this Agreement, and the remainder of this Agreement and such provisions as applied to other persons, places and circumstances will remain in full force and effect.
- This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any state or federal court located in the County of Santa Clara, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. Notwithstanding this, you agree that Eyefi will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Software, Services or this Agreement will be filed within one year after such claim or cause of action arose or be forever barred.
- The Software and Services are controlled and operated by Eyefi from the United States, and are not intended to subject Eyefi to the laws or jurisdiction of any state, country or territory other than that of the United States. Eyefi does not represent or warrant that the Software or Services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access and use the Software or Services do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. Eyefi may limit availability of the Software or Services, in whole or in part, to any person, geographic area or jurisdiction selected by Eyefi, at any time and in Eyefi's sole discretion.
- You agree that, except for third-party Eyefi Parties and as otherwise expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
- The section titles in this Agreement are for convenience only and have no legal or contractual effect
- This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Eyefi's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
Additional Terms for Services
If you use the Services, the following Sections 12-19 shall apply.
Your Registration Obligations.
- In order to access and use certain features of the Services or functions of your Eyefi Device, you must register for an account with Eyefi ("Account") by providing information about yourself (such as identification or contact details) as part of the registration process. You agree that any registration information you give to Eyefi will always be accurate, correct, complete, and up to date and you agree to maintain the accuracy of such information.
- You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with your Account. Accordingly, you agree that you will be solely responsible to Eyefi for all activities that occur under your Account. If you become aware of any unauthorized use of your password or of your Account, you agree to notify Eyefi immediately at email@example.com.
- Certain features of the Services are available at additional cost. The renewal fee shall be the then-current fee for the applicable Service. Eyefi reserves the right to modify the fees and charges and to introduce new charges at any time. Subscriptions to paid Services (other than lifetime access) automatically renew monthly or annually (depending on whether you ordered a monthly or annual subscription) until you cancel the Service. Eyefi will notify you at the e-mail address associated with your Account at least seven (7) days prior to the expiration of the current term of your subscription. You may cancel a Service at any time by following the directions on the applicable Service or emailing us at firstname.lastname@example.org. You agree to pay all fees or changes to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Any applicable taxes, levies, or duties imposed by taxing authorities will be in addition to Eyefi's fees, and you are responsible for payment of all such taxes, levies or duties. All payments are nonrefundable (even if you cancel a paid Service prior to the expiration of the term).
- Eyefi utilizes a third party ("Payment Provider") to process payments. You must provide our Payment Provider with a valid credit card or payment account information for another valid payment method accepted by the Payment Provider. The Payment Provider's policies govern the processing of your payment, and you must refer to those policies and not this Agreement to determine your rights and liabilities. Eyefi through its Payment Provider will automatically bill your credit card or payment account until you cancel the applicable Service as follows: (a) on the date you subscribe to the applicable Service and each month thereafter for monthly subscriptions; (b) on the date you subscribe to the applicable Service and each year thereafter for annual subscriptions; or (c) on the date you subscribe to the applicable Service for lifetime access. By providing your credit card number or other payment account and associated payment information to Eyefi or its Payment Provider, you hereby authorize Eyefi through its Payment Provider to bill your credit card or payment account as described above. If timely payment is not received or cannot be charged to your credit card or payment account, Eyefi reserves the right to suspend or terminate your access to the applicable Service. You agree that Eyefi may charge such unpaid fees to your credit card or payment account or otherwise bill you for such unpaid fees.
Your Use of the Services.
- The Services are intended solely for use by individuals who are thirteen (13) years of age or older. Any registration, use or access to the Services by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. If you are thirteen (13) years of age or older but under eighteen (18) years of age, you may use the Services only if you either are an emancipated minor or have the consent of your parent or legal guardian, and are fully able and competent to enter into this Agreement and to abide by and comply with its terms.
- You agree to use the Services only for purposes that are permitted by (i) this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- Eyefi makes the Services available to you only for your personal use.
- In connection with your accessing or use of the Services, you agree not to:
- engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services);
- introduce a virus, worm, Trojan horse, time bomb or any other harmful software code, data or similar file that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, personal information or property of another;
- consume a disproportionate amount of CPU time, bandwidth, memory storage space or any other system or network resources, including exceeding any limits imposed by Eyefi on peak concurrent usage of the Services;
- use the Services in any manner that could damage, disable, overburden or impair any Eyefi server (or the networks connected to any Eyefi server) or interfere with any other party's use and enjoyment of the Services;
- attempt to gain unauthorized access to other accounts, computer systems or networks connected to any Eyefi server or to the Services through hacking, password mining or any other means;
- obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services;
- use the Services on a timeshare or service bureau basis or to host Content for access and viewing through third party websites;
- host, on a subscription, membership or pay-per-use basis or otherwise, the Services;
- engage in any systematic extraction of data or data fields, including without limitation email addresses;
- sell, lease or rent access to or use of the Services or otherwise transfer any rights to use the Services under this Agreement;
- defraud, defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as the rights of privacy and publicity) of others;
- utilize the Software or Services in connection with any activity which would constitute, assist or encourage a violation of any applicable law, regulation or ordinance;
- falsify or delete any copyright management information (for example, author attributions, legal or other proper notices or proprietary designations) or labels of the origin or source of software or other material contained in a file that is transmitted; or
- transmit files that contain images, photographs, software or other material protected by intellectual property laws including, by way of example and not as a limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
- You agree that you are solely responsible for (and that Eyefi has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which Eyefi may suffer) of any such breach.
Responsibility for and Use of Content.
- You hereby grant Eyefi a non-exclusive, irrevocable, royalty-free, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use the Content, and to grant sublicenses of the foregoing, to provide the Services to you and to grant access to your Content to other persons authorized by you to access your Content. All rights in and to the Content not expressly granted to Eyefi in this Agreement are reserved by you.
- You agree that you are solely responsible for (and that Eyefi has no responsibility to you or to any third party for) any Content that you transmit while using the Services and for the consequences of your actions (including any loss or damage which Eyefi may suffer) by doing so. Eyefi does not verify, endorse or claim ownership of any Content, and you retain all right, title, and interest in and to the Content.
- You acknowledge that the Services are automated (e.g., Content is transmitted using software tools and third party services) and that Eyefi personnel will not access, view or listen to any Content, except in connection with providing the Services including, but not limited to, the following: (i) during a Services interruption, as necessary to restore the applicable Content; (ii) to troubleshoot any issue with the Services; or (iii) as deemed necessary or advisable by Eyefi in good faith to conform to legal requirements or comply with legal processes.
- You understand that Eyefi, in performing the required technical steps to provide the Services to its users, may (i) transmit or distribute your Content over various public networks and in various media, and (ii) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that Eyefi is permitted to take these actions in connection with the provision of the Services.
- You represent and warrant that (i) you are the owner, licensor or authorized user of all Content and you have all necessary rights, power, and authority in and to the Content to permit Eyefi to use the Content as contemplated herein to provide the Services, and (ii) you will not transmit or distribute Content that: (A) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence or any illegal activities; (B) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret or other intellectual property rights of any third party or Eyefi, or any rights of publicity or privacy of any party; (C) contains inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content; (D) is harmful to minors; or (E) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising).
16. Third Party Provided Services.
Eyefi has partnered with third parties to provide some of the Services, including but not limited to the Eyefi Geotagging Service and the Eyefi Hotspot Service ("Third Party Provided Services"). Although Third Party Provided Services may be included as part of the Services, and your use of them is covered by this Agreement, notwithstanding anything to the contrary in this Agreement, Eyefi makes no representations or warranties concerning, and is not liable or responsible in any manner for, any performance, effectiveness or other aspect of Third Party Provided Services. As a condition of using some Third Party Provided Services, you may be required to agree to supplementary terms that will be separately presented to you.
Suspension of Services.
Eyefi does not generally monitor user activity occurring in connection with the Services. If Eyefi becomes aware, however, of any possible violations by you of Sections 14 ("Your Use of the Services"), 15 ("Responsibility for and Use of Content") or any other provision of this Agreement, Eyefi reserves the right to investigate such violations, and Eyefi may, in its sole discretion, terminate or suspend your use of the Services without prior notice to you. If, as a result of such investigation, Eyefi believes that criminal activity has occurred, Eyefi reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Eyefi is entitled, except to the extent prohibited by applicable law, to disclose any information about you in Eyefi's possession in connection with your use of the Services to law enforcement or other government officials, as Eyefi in its sole discretion believes to be necessary or appropriate.
Notices of Copyright Infringement