KAKAKIEXPRESS END USER LICENSE AGREEMENT
The Licensed Application is not a replacement for your primary telephone service anddoes not provide access to emergency services. You cannot use the Licensed Application to make calls to emergency services (e.g., by dialing 911, 112 or 999). However, you can continue to use your mobile device to make calls to emergency services via your mobile operator as normal.
2. If you are a consumer making a prepayment for the Licensed Application in the United Kingdom, you have the right to cancel this Agreement within seven working days of your first prepayment. To do so you must notify us in writing (such as email) within those seven working days. You will then be entitled to a refund of the prepayment which we shall pay as soon as possible, but in any event within 30 days. You do not have the right to cancel this Agreement once you have begun to use the Licensed Application. Nothing in this section affects your non-excludable statutory and legal rights.
3. We are the owner of the copyright, trade secrets, trade marks and any other intellectual property rights including all related software and underlying source code which subsist in the Licensed Application and all copies thereof. Title to and ownership of the Licensed Application shall at all times remain vested in us. You accept that the Licensed Application contains confidential information that is our property. You agree and acknowledge that we shall own the intellectual property rights to any modifications of the Licensed Application. “Voiceserve”, “Voipswitch” and “Kakakiexpress” (Application Provider Trade Marks) are owned by us and no right or license is granted to the Application Provider Trade Marks.
4.1 Subject to the terms and conditions of this Agreement, we grant to you a non-exclusive, revocable, personal, non-transferable license to use the Licensed Application without any right to sub-license. You will not sell, sub-license, lease, rent, loan, lend, transmit or otherwise distribute or transfer the Licensed Application in any manner to third parties.
4.2 The license granted hereunder is limited to use of the Licensed Application on a mobile device that you own or control. You will not use the Licensed Application on any mobile device that is not owned by you or under your control and you agree not to distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time.
5. You undertake not to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Licensed Application or any updates thereof and you will not adapt, alter, modify, upgrade, enhance or create derivative works of the Licensed Application or any updates thereof.
6. You will not reproduce or copy any part of the Licensed Application and you will not disclose to any third party the Licensed Application or any part thereof without our prior written consent. The Licensed Application is provided to you for your own personal use only and you will not re-sell or in any way re-supply the Licensed Application to others.
7. The terms of this Agreement will govern any upgrades provided by us unless such upgrade is expressly stated to be subject to a separate license agreement.
8. You agree to use the Licensed Application strictly in accordance with this Agreement and any instructions issued by us from time to time. You have sole responsibility for any content or data which you upload, post, email or otherwise transmit via the Licensed Application. You agree not to not use the Licensed Application in contravention of any applicable local, state, national or international law, regulation or code of practice.
9.1 Charges and payment terms which may be applicable will be provided to you before you complete payment for the download of the Licensed Application.Unless expressly provided elsewhere in this Agreement, upon termination of your account, all unused credits or pre-paid minutes shall expire in their entirety and no refund or pro-ration shall be made for any unused credits or minutes. You are solely responsible for any charges incurred using your Licensed Application user account and you must keep your log-in details private and notify us immediately if you believe that another person has had unauthorized access to your user account. You are responsible for the security of your user account and for all activities that occur in connection with your account. Any breach of security (for example, in connection with your username or password) must be notified to us immediately. If you provide any information that is false, untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is false, untrue, inaccurate, not current or incomplete, we shall have the right to suspend or terminate your user account and refuse any and all current or future use of the Licensed Application.
9.2 We reserve the right to change rates at any time without notice. If you do not wish to accept such change in rates, you can terminate your account with effect from the date on which the rate change would become effective. By continuing to use the Licensed Application following any rate change, you accept such rate change.
9.3 Because some mobile network operators may prohibit or restrict the use of Voice over the Internet Protocol (“VoIP”) functionality over their network, such as the use of VoIP telephony over a mobile network, and may also impose additional fees or other charges in connection with VoIP, you must prior to use of the Licensed Application ensure that the terms of agreement with your operator do not prohibit or otherwise restrict use of the Licensed Application over such operator’s network. You are responsible for all data and other charges imposed by your operator or Wi-Fi provider which may be incurred when using the Licensed Application.You further understand that the costs of data connectivity services when using the Licensed Application may rise significantly when roaming internationally and that you are solely responsible for all charges in connection with your use of the Licensed Application. We are not liable for these or any other costs you may incur by using your operator’s or other third party services. You must comply with all applicable third party terms of agreement to ensure that you will not be in violation of the terms of agreement with your mobile operator when using the Licensed Application.
10. You warrant and represent that you have the necessary rights to install and use the Licensed Application and you will indemnify and keep us, our affiliates, agents, partners and officers, fully and effectively indemnified on demand from and against all actions, claims, losses, liability, damages, costs and expenses (including legal costs and expenses) suffered or incurred by us, our affiliates, agents, partners and officers and arising directly or indirectly out of your use of the Licensed Application.
11. You agree that the Licensed Application is provided “as is” and that we do not provide any guarantee, warranty or assurance that the Licensed Application will operate continuously or without interruptions or be error free or meet your requirements or that defects in the Licensed Application will be corrected. Accordingly, we do not accept liability for unavailability or the timeliness, deletion, mis-delivery or failure of the Licensed Application. You assume full responsibility and sole risk for your use of the Licensed Application. To the maximum extent possible, no warranties or terms implied by applicable law, including without limitation those relating to satisfactory quality, performance, fitness for purpose, quiet enjoyment and non-infringement of third party rights shall apply to the subject matter of this Agreement. In entering into this Agreement, each party acknowledges that it does not do so on the basis of, and does not rely on any representation, warranty, condition or other provision except as expressly provided in this Agreement and we exclude all express or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to the Licensed Application to the fullest extent permitted by law. Should the Licensed Application be defective, you will assume the entire cost of all necessary servicing, repair or correction to any hardware or software used in conjunction with the Licensed Application. We shall not be responsible for operation of the Licensed Application other than on hardware approved by us and in conjunction with the operating environment designated for the Licensed Application. The limitations and exclusions in this section do not affect your non-excludable statutory rights and only apply to the extent permitted by applicable law.
12. We make no representation that the Licensed Application is permitted or available for use in any particular location. To the extent you choose to access the Licensed Application, you do so at your own risk and you are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
13. We may add, change, remove or discontinue any aspect of the Licensed Application at any time. In the unlikely event that we make any changes which are materially detrimental to you, you may terminate this Agreement on written notice and you may be entitled to a refund of any unused prepaid amount representing the period following the termination date. If you use the Licensed Application after any changes take effect you will be bound by the changes and you shall have no right to terminate this Agreement on the ground of the changes made.
14. Nothing in this Agreement shall exclude or restrict the liability of either party for
To the extent permitted by applicable law, our aggregate liability to you arising out of or in connection with your use of the Licensed Application shall not exceed £25.00 (GB Pounds Sterling) and we shall not be liable in contract, tort, negligence or otherwise for any indirect or consequential loss, or for any loss of profits, data, revenue, business opportunity, anticipated savings, goodwill or reputation even if we are expressly advised of the possibility of such damage or loss. The limitations and exclusions in this section do not affect your non-excludable statutory rights and only apply to the extent permitted by applicable law.
15. This Agrement may be terminated at any time by us or by you. We may suspend or terminate your Service at any time acting reasonably, if you fail to make any payment when it becomes due.Your rights under this Agreement will terminate automatically without notice from us if you fail to comply with any term of this Agreement.
16. Immediately on termination of this Agreement, you will cease all use of the Licensed Application and will destroy the Licensed Application and any copies thereof.
17. We may suspend or terminate the Licensed Application and this Agreement if directed to comply with an order, instruction or request of any law enforcement, government or other competent authority.
19. You must not use the Licensed Application to transmit, receive, email, download, upload, view or otherwise use any material which is defamatory or libellous; obscene, offensive, hateful, inflammatory or otherwise criminal in nature; contains sexually explicit material; promotes violence; promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringes any copyright, database right, trade mark or other intellectual property right of any person; is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; is threatening, abusive or invades any person’s privacy; is likely to harass, upset or alarm any other person; is used to impersonate any person, or to misrepresent your identity or affiliation with any person; gives the impression that they emanate from us, if that is not the case; or advocates, promotes or assists any unlawful act such as (without limitation) copyright infringement or computer misuse.
21. We may amend this Agreement from time to time and post the new version on our website following which all use of the Licensed Application will be governed by the revised version. You must check the terms of this Agreement accessible from our website from time to time to review them. We shall update the “Last modified” date in the event of a change to this Agreement. In the unlikely event that we make any modifications to this Agreement which are materially detrimental to you, you may terminate this Agreement on written notice and you may be entitled to a refund of any unused prepaid amount representing the period following the termination date. If you use the Licensed Application after the “Last modified” date you will be bound by the changes and you shall have no right to terminate this Agreement on the ground of the modifications made.
22. We shall not be liable for any failure to perform any obligation to the extent such failure is due to causes beyond our reasonable control.
23. We may assign, transfer, novate or subcontract any or all of our rights and obligations under this Agreement at any time.”
24. The termination of this Agreement however arising shall not operate to affect such of the provisions of this Agreement as are expressed to operate or have effect after then and shall be without prejudice to any accrued rights or remedies of the parties..”
25. Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
26. This Agreement shall be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts except that we may take any action we consider necessary to protect or preserve any of our confidential information and intellectual property rights in any court of competent jurisdiction.
27. If any provision of this Agreement shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such provision shall be divisible from the others and shall be deemed deleted.
28. Any notice which may be given by either party shall be deemed to have been given if left at or sent by first class pre-paid post or email transmission to a postal address or email address notified by the other party in writing as an address to which notices may be sent.
29. This Agreement represents the entire agreement and understanding of the parties in relation to the subject matter hereof and supersedes all prior understandings and representations, whether written or oral.