PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE APP.
By clicking the “Accept” button, or installing and/or using the smART Sketcher mobile software application (the “App“) you expressly acknowledge and agree that you (“User” or “you“) are entering into a legal agreement with Flycatcher Corp Ltd. (“Flycatcher“, “we“, “us” or “our“), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this End User License Agreement (“Agreement“). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not download, install or use the App.
Ability to Accept.
By installing the App and clicking the “Accept” button, you affirm that you are either (i) a Parent of a Child (both as defined below); or (ii) over thirteen (13) years of age. If you are a child under the age of thirteen (13) (a “Child“), your parent or legal guardian (a “Parent“) will be required to create an Account in order for the Child use the App. If you are a User between the age of thirteen (13) and eighteen (18) years then, prior to installing the App, you must first review this Agreement with your Parent to make sure that you and your Parent understand its terms and conditions and agree to them.
Subject to the terms and conditions of this Agreement, we hereby grant you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license (“License“) to: (i) download, install and use the App on a mobile telephone, tablet or any other device (each a “Device“) that you own or control; and (ii) access and use the App on that Device in accordance with this Agreement and any applicable Usage Rules (defined below).
You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, sell, lease, lend or rent the App; (ii) make the App available over a network where it could be used by multiple devices owned or operated by different people at the same time; (iii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the App; (iv) copy, modify, improve, or create derivative works of the App or any part thereof; (v) circumvent, disable or otherwise interfere with security-related features of the App or features that prevent or restrict use or copying of any content or that enforce limitations on use of the App; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the App; (vii) use any communications systems provided by the App to send unauthorized and/or unsolicited commercial communications; (viii) use the Flycatcher name, smART Sketcher name, logo or trademarks without our prior written consent; and/or (ix) use the App to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
If you are downloading the App from a third party mobile device platform or service provider (“Distributor“), please be aware that the Distributor may have established usage rules which also govern your use of the App (“Usage Rules“). We specifically refer to the Usage Rules of certain Distributors below in the section below entitled ‘Distributor Requirements and Usage Rules’, but other Usage Rules may be applicable depending on where the App has been downloaded from. You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from installing and/or using the App.
Intellectual Property Rights.
The App is licensed and not sold to you under this Agreement and you acknowledge that Flycatcher and its licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the App (and its related software). We reserve all rights not expressly granted herein to the App. “Intellectual Property Rights” means any and all rights in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
The content on the App, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (the “Materials“), and the User Submissions (defined below), and the trademarks, service marks and logos contained therein (“Marks“, and together with the Materials and User Submissions, the “Content“), is the property of Flycatcher and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. “Flycatcher”, “smART Sketcher” and the smART Sketcher logo are Marks of Flycatcher and its affiliates. All other Marks used on the App are the trademarks, service marks, or logos of their respective owners.
Use of Content.
The content on the App is provided to you “as is” for your personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. If you download or print a copy of the content you must retain all copyright and other proprietary notices contained therein.
User Generated Content.
- While using the App you might create certain content (“User Generated Content“). You and your Parent understand that whether or not such User Generated Content is published, we do not guarantee any confidentiality with respect to any User Generated Content. You shall be solely responsible for your User Generated Content and the consequences of posting or publishing them on other platforms.
- Ownership. You represent and warrant that you own or have the necessary rights and permissions to use and authorize us to use all Intellectual Property Rights in and to your User Generated Content, and to enable inclusion and use thereof as contemplated by this Agreement. You retain all of your ownership rights in your User Generated Content.
- Disclosure. We reserve the right, to the extent applicable, to access, read, preserve, and disclose any User Generated Content or any other information that we obtain in connection with the App as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce this Agreement, including investigation of potential violations of it, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your user support requests, or (v) protect the rights, property or safety of Flycatcher, our users or the public.
It is Flycatcher’s policy to respect the legitimate rights of copyright and other intellectual property owners, and we will respond to clear notices of alleged copyright infringement in accordance with our Copyright which may be viewed at: https://www.smartsketcher.com/copyright-policy/ (“Copyright Notice“).
- The License for the App granted hereunder is currently for free, however, we may in the future charge a fee for certain features and/or uses. You will not be charged for any such uses of the App unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the App.
- Please be aware that your use of the App may require and utilize internet connection or data access. To the extent that third party service provider or carrier charges for your internet or data usage are applicable, you agree to be solely responsible for those charges.
We attempt to be as accurate as possible. However, we cannot and do not warrant that the content available on the App is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the content, or any part thereof without the requirement of giving you any notice prior to or after making such changes to the content.
- THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
- IT IS HEREBY MADE CLEAR THAT FLYCATCHER SHALL NOT BE RESPONSIBLE FOR ANY INACCURACY OR OMISSIONS OF DATA CONTAINED IN AND ON THE APP OR FOR ANY ACTIONS YOU MAY TAKE IN RELIANCE ON SUCH DATA. YOU WARRANT AND AGREE THAT YOU SHALL NOT HAVE ANY CLAIM AGAINST FLYCATCHER BASED ON ANY ACTIONS OR OMISSIONS THAT YOU TAKE (OR DO NOT TAKE) BASED ON THE DATA CONTAINED ON THE APP.
- WE DO NOT WARRANT THAT THE APP WILL OPERATE ERROR-FREE, THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE APP. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
- IF YOU HAVE A DISPUTE WITH ANY OTHER APP USER, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
- Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
Limitation of Liability.
- UNDER NO CIRCUMSTANCES SHALL FLYCATCHER BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE APP EVEN IF FLYCATCHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN ANY EVENT, FLYCATCHER’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE APP, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS, ACTUALLY PAID BY YOU TO FLYCATCHER FOR USING THE APP WITHIN THE THREE (3) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM, AND IF NO SUCH FEES ARE APPLCIABLE, NO MORE THAN $20 US DOLLARS.
You agree to defend, indemnify and hold harmless Flycatcher and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the App; (ii) your violation of this Agreement; and (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right. Without derogating from or excusing your obligations under this section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
Updates and Upgrades.
We may from time to time provide updates or upgrades to the App (each a “Revision”), but are not under any obligation to do so. Such Revisions will be supplied according to our then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original App, unless the Revision is accompanied by a separate license agreement which will govern the Revision.
Third Party Content.
- The App enables you to view, access, link to, and use content from third party sources that are not owned or controlled by us (“Third Party Content“). We are not affiliated with and have no control over any Third Party Content. We do not assume any responsibility for the sources from which the Third Party Content is generated from, and we expressly disclaim all warranties regarding, the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights of, or relating to, any Third Party Content.
- You are solely responsible and liable for your interaction with Third Party Content. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against Flycatcher, and release Flycatcher from any and all liability, arising from your use of and interaction on any Third Party Content.
Third Party Open Source Software.
Portions of the App may include third party open source software that are subject to third party terms and conditions (“Third Party Terms“). A list of any third party open source software and related Third Party Terms is available at: https://www.smartsketcher.com/3rd-party-services/. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software. Notwithstanding anything in this Agreement to the contrary, Flycatcher makes no warranty or indemnity hereunder with respect to any third party open source software.
Term and Termination.
- This Agreement is effective until terminated by us or you. We reserve the right, at any time, to: (i) discontinue or modify any aspect of the App; and/or (ii) terminate this Agreement and your use of the App with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the App in any way, your only recourse is to immediately discontinue use of the App.
- Upon termination of this Agreement, you shall cease all use of the App. This Section 17.2 and Sections 6 (Intellectual Property Rights), 10 (Privacy), 11 (Warranty Disclaimers), 12 (Limitation of Liability), 13 (Indemnity), and 18 (Assignment) to 21 (General) shall survive termination of this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by Flycatcher without restriction or notification.
We reserve the right to modify this Agreement at any time by sending you an in-App notification and/or publishing the revised Agreement on the App. Such change will be effective ten (10) days following the foregoing notification thereof, and your continued use of the App thereafter means that you accept those changes.
Governing Law and Disputes.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to its conflict of laws rules. You agree to submit to the personal and exclusive jurisdiction of the courts located in London, England, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction.
This Agreement, and any other legal notices published by us in connection with the App, shall constitute the entire agreement between you and Flycatcher concerning the App. In the event of a conflict between this Agreement and any such legal notices, the terms of the applicable notice shall prevail with respect to the subject matter of such notice. No amendment to this Agreement will be binding unless in writing and signed by Flycatcher. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Distributor Requirements and Usage Rules.
If you download the App from the Apple, Inc. (“Apple“) App Store (or in any event if you download an Apple iOS App) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
- You acknowledge and agree that:
- this Agreement is concluded between Flycatcher and you only, and not with Apple, and Flycatcher and its licensors, and not Apple, are solely responsible for the App and the content thereof.
- your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
- the License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPad, or other Apple-branded products that you own or control and that runs the iOS as permitted by the usage rules set forth in the App Store Terms of Service, except that such App may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing;
- Flycatcher is solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement, or as required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
- Flycatcher is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Flycatcher’ sole responsibility;
- Flycatcher, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App’s use of HealthKit and HomeKit frameworks; This Agreement may not limit Flycatcher’s liability to you beyond what is permitted by applicable law.
- in the event of any third party claim that the App or your possession and use of the App infringes that third party’s Intellectual Property Rights, Flycatcher, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such Intellectual Property infringement claim;
- Apple, and its subsidiaries, are third party beneficiaries of this Agreement, and that, 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.
- You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints, or claims regarding the App, please contact us at:
- You acknowledge and agree that:
Last updated: April 2018