Last Updated: December 18, 2017
Welcome to Fyde’s application, an innovative mobile technology that protects your mobile device from online threats (the “Fyde App”).
THESE APPLICATION TERMS (THE “TERMS”) APPLY TO YOUR USE OF THE FYDE APP PROVIDED BY FYDE, INC. “FYDE”).
PLEASE READ THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY.
THESE APPLICATION TERMS (THE “TERMS”) APPLY TO YOUR USE OF THE APPLICATION AND RELATED SERVICES (COLLECTIVELY THE “APP”) PROVIDED BY FYDE, INC. (“FYDE”).
BY DOWNLOADING OR ACCESSING THE FYDE APP OR CLICKING TO AGREE, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS; (B) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE TERMS; AND (C) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE TERMS.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THE TERMS, YOU MAY NOT USE OR OTHERWISE ACCESS THE FYDE APP.
If you are entering into the terms and conditions of the Terms on behalf of a company (or other entity) or if you are accessing the Fyde App in your capacity as an employee, consultant or agent of a company (or other entity), you represent that you are an employee, consultant or agent of such company (or other entity) and you have the authority to agree (and be legally bound) on behalf of such company (or other entity) to all of the terms and conditions of the Terms.
THE “EFFECTIVE DATE” OF THE TERMS IS THE DATE YOU FIRST DOWNLOAD THE FYDE APP. FOR THE PURPOSE OF THE TERMS, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “YOU”. THE TERMS CONSTITUTES A LEGALLY ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND FYDE.
Subject to the terms, conditions and limitations set forth in the Terms, Fyde grants you a nonexclusive, non-transferable and revocable license to use the Fyde App on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by Fyde that replace and/or supplement the original Fyde App, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Except as expressly agreed to, in writing, by Fyde, you agree not to do, authorize or permit any third party to do any of the following: (a) copy, reproduce or distribute the Fyde App; (b) make the Fyde App available over a network where it could be used by multiple devices at the same time; (c) sell, license, rent, assign, lease, lend, redistribute or sublicense the Fyde App; (d) modify, port, translate, or create derivative works of the Fyde App; (e) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Fyde App by any means (except as and only to the extent any of these restrictions are prohibited by applicable law); (f) submit any automated or recorded requests to the Fyde App; (g) use the Fyde App for purposes of comparison with or benchmarking against products or services made available by third parties; (i) knowingly take any action that would cause the Fyde App to be placed in the public domain; and (h) remove, alter or obscure any copyright, trademark or other proprietary rights notice or labels on or in the Fyde App. If you violate any of the restrictions set forth in the Terms, your right to use the Fyde App will immediately cease and you may have infringed the copyright and other rights of Fyde, which may subject you to prosecution and damages. Fyde reserves all rights not expressly granted in the Terms, and no licenses are granted by Fyde to you under the Terms, whether by implication, estoppel or otherwise, except as expressly set forth in the Terms.
Any suggestions, comments or other feedback provided by you with respect to the Fyde App and/or our products and services will constitute our confidential information. We will be free to use, disclose, reproduce, license and otherwise distribute, and exploit this feedback as we see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
You agree that you are solely responsible for your conduct (and the conduct of anyone using the Fyde App on your device) with respect to the Fyde App, and you agree that you will not do any of the following in connection with the Fyde App:
Any use of the Fyde App in violation of the Terms may result in, among other things, termination or suspension of your rights to use the Fyde App.
Fyde’s name, Fyde™, Fyde’s logos and any other Fyde product, service name or slogan included in the Fyde App are trademarks of Fyde and may not be copied, imitated or used, in whole or in part, without the prior written permission of Fyde. In addition, the look and feel of the Fyde App, including all custom graphics, button icons and scripts are the service marks, trademarks and/or trade dress of Fyde and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Fyde App (Third Party Trademarks) are the property of their respective owners, and the use of such Third-Party Trademarks will inure to the benefit of each trademark owner. The use of such Third-Party Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by Fyde and its licensors with such company; or (ii) an endorsement or approval by such company of Fyde and its licensors and its products or services.
Except for the license expressly stated in the Terms, you are not granted any rights in or to the Fyde App by implication, estoppel, or other legal theory, and all rights in and to the Fyde App not expressly granted in the Terms are hereby reserved and retained by Fyde. All information, materials and content including, but not limited to, text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content (collectively Fyde Material is owned by Fyde or is used with permission. This Fyde Material is protected in all forms, media and technologies now known or hereinafter developed.
Fyde reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline of the Fyde App, at any time and in its sole discretion by posting the changes/modifications via the Fyde App. Additionally, notice may be provided by sending an email to you or by such other form of notice as determined by Fyde. Changes/modifications will only become effective at the end of the 30-day period commencing upon the posting of the changes/modifications via the Fyde App (Notice Period). If you disagree with any changes/modifications, please stop using the Fyde App within the Notice Period. Your use of the Fyde App after the Notice Period will constitute your acceptance of the changes/modifications. Also, we recommend that you review the Terms whenever you access the Fyde App and at least every 30 days to make sure that you understand the terms and conditions that will apply to your use of the Fyde App.
Fyde may suspend and/or terminate your rights with respect to the Fyde App for any reason or for no reason at all and with or without notice at Fyde’s sole discretion. Suspension and/or termination may include restricting access to and the use of the Fyde App. If your rights with respect to the Fyde App are suspended and/or terminated, you agree to make no further use of the Fyde App during suspension or after termination. Fyde reserves the right, but does not undertake any duty, to take appropriate legal action including, but not limited to, the pursuit of civil, criminal and/or injunctive redress against you for continuing to use the Fyde App during suspension or after termination, and you agree that Fyde may recover its reasonable attorney’s fees and court costs from you for such actions. Even while your membership is suspended and after it is terminated, the Terms will remain enforceable against you. All of the terms and conditions of the Terms survive any termination of the Terms (except the “License” section).
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE FYDE APP IS AT YOUR SOLE RISK. THE FYDE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FYDE DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, THE FYDE APP, THE FYDE MATERIAL, ANY FYDE PRODUCTS AND SERVICES, THIRD PARTY SITES AND THIRD PARTY TRADEMARKS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT FYDE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. FYDE DOES NOT WARRANT THAT: (I) THE FUNCTIONS CONTAINED IN THE FYDE APP WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (II) THE OPERATION OF THE FYDE APP WILL BE UNINTERRUPTED OR ERROR-FREE; OR (III) ANY DEFECTS IN THE FYDE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY FYDE OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
You agree, at your sole expense, to defend, indemnify and hold us and our licensors harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (a) your conduct; (b) your violation (or alleged violation) of the Terms or the rights of any third party; or (c) any use of data or other information in a manner contrary to applicable laws or the terms and conditions of any employer documents or policies.
IN NO EVENT WILL: (A) FYDE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL OR INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE TERMS, THE FYDE APP, THE FYDE MATERIAL, ANY FYDE PRODUCTS OR SERVICES, THIRD PARTY SITES OR THIRD PARTY TRADEMARKS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF FYDE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) FYDE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE TERMS EXCEED THE TOTAL AMOUNT RECEIVED BY FYDE FROM YOU PURSUANT TO THE TERMS (IF ANY). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THE TERMS IS DEEMED TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.
[Note: Additional standard terms regarding to be included, as required by Apple, regarding the App Store.]
Except as otherwise expressly stated elsewhere in the Terms, there will be no third-party beneficiaries to the Terms.Except as otherwise expressly stated elsewhere in the Terms, there will be no third-party beneficiaries to the Terms.
Fyde reserves the right, at its sole discretion, to review, improve, modify or discontinue, temporarily or permanently, the Fyde App and/or any features, information, materials or content on the Fyde App with or without notice to you. You agree that Fyde will not be liable to you or any third party for any modification or discontinuance of the Fyde App or any portion thereof.
You may not use or otherwise export or re-export the Fyde App except as authorized by United States law and the laws of the jurisdiction in which the Fyde App was obtained. In particular, but without limitation, the Application 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 list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Fyde App, 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 the Fyde App for any purposes prohibited by United States law, including, but not limited to, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
The Fyde App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the Terms. Unpublished rights reserved under the copyright laws of the United States.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH FYDE AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM FYDE.
You and Fyde agree to arbitrate any dispute arising from the Terms or relating to the Fyde App, except that you and Fyde are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and Fyde agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in San Mateo, California, and that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association. You and Fyde also agree that the state or federal courts in San Mateo County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND FYDE WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
If any provision of the Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of the Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by the Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify the Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
Notwithstanding any terms to the contrary in the Terms, the following additional terms will apply to the download of the Fyde App for use on the iPhone, iPod Touch or iPad:
[Note: Additional standard terms regarding to be included, as required by Apple, regarding apps for use on Apple devices.]