Skyfire, Inc. ("Skyfire") has developed a mobile web browser that enables you to access the internet, interact with websites, and send and receive content on your mobile phone, tablet, or other handheld electronic devices (your "Device").
The Browser includes the SkyBar™ toolbar which is designed to create an enhanced browsing experience, with improved video and social features.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THESE "TERMS") CAREFULLY BEFORE USING THE BROWSER. These Terms govern your access to and use of the Browser and the accompanying content, data and other materials accessed through the Browser. BY CLICKING THE "ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. If you do not accept these Terms, you may not use the Browser.
1. Basic Requirements
a. The Browser is intended solely for your own personal, non-commercial use in accordance with these Terms. You may not re-sell the Browser in any way. b. You must be at least eighteen (18) years of age to accept these Terms and use the Browser. If you are under the age of 18, please do not download or install the Browser.
Skyfire reserves the right, in its sole discretion, at any time to modify, discontinue or terminate the Browser or modify these Terms. Skyfire shall notify you of any changes and require you to agree to such modified Terms to continue to use the Browser. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Browser. By continuing to access or use the Browser after Skyfire makes any such modification, you agree to be bound by the revised Terms.
3. Carrier Transactions and Charges
Your dealings with any wireless, telecommunications or other carrier ("Carrier") in connection with the Browser, including payment for and delivery of the Browser, participation in any promotions offered by any Carrier, and/or any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the Carrier. Skyfire is not responsible or liable for any part of any such dealings or promotions. You are solely responsible for, and Skyfire will not have any liability to you for, any access or usage charges charged by a Carrier related to any device that you use to access or use the Browser, including, without limitation, usage charges for telephones, handheld devices, car navigation systems, pagers and other devices, whether wireless or wireline.
5. Grant of License
Subject to your compliance with these Terms, Skyfire grants you a non-exclusive, non-transferable, non-sublicensable license to download, install and use the executable form of the Browser only on your Device and solely for your personal use. Skyfire reserves all rights not expressly granted to you in this Terms.
6. Your Warranty
You warrant, represent and agree that you will not (and will not permit any others to) use the Browser in any manner that (i) violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable as determined by Skyfire; or (iv) prevents others from using the Browser. Skyfire reserves the right, but shall have no obligation, to investigate your use of the Service in order to determine whether a violation of these Terms has occurred or to comply with any applicable law, regulation, legal process or governmental request.
Except as expressly specified in these Terms, you shall not (and will not permit any others to do any of the following): (a) copy or modify the Browser; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Browser to any third party; (c) make the Browser or its functions available to multiple users through any means, including, without, limitation, by uploading the Browser to a network or file-sharing service or through any hosting, application services provider, service bureau or any other type of service; (d) adapt, alter, modify, translate or create derivative works of the Browser without the express written authorization of Skyfire; or (e) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services or other features that constitute part of the Browser. You acknowledge and agree that portions of the Browser, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Skyfire and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer the Browser, in whole or in part, or permit or authorize a third party to do so, except to the extent such restrictions are expressly prohibited by applicable law.
The Browser is licensed, not sold. Skyfire and its licensors retain all right, title, and interest in and to the Browser, including all intellectual property rights therein. The Browser is protected by United States and other laws and international treaties. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Browser as delivered to you.
The Terms shall remain effective until terminated by either you or Skyfire as set forth below.
a. You may terminate the Terms at any time, with or without cause, by uninstalling the Browser from your Device. b. Skyfire may terminate the Terms if you breach any provision of the Terms, Skyfire ceases to provide the Browser for your use, or if Skyfire is required to do so by law. Furthermore, Skyfire may terminate the Terms and your use of the Browser at any time for any reason. c. In the event of any termination of the Terms, you agree to uninstall and delete all copies of the Browser in your possession or control. Upon termination of your account, your right to use the Browser will immediately cease. All provisions of these Terms which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
10. Third Party Content
In the course of using the Browser, you may access content, products and services provided by third parties. Skyfire does not control these third parties or their links, and Skyfire is not responsible for the content, products, materials or practices of any third party. You understand that by using the Browser you may be exposed to content that you find offensive, indecent or otherwise objectionable. You agree that Skyfire is not responsible or liable for: (i) the availability or accuracy of, such third-party websites or resources; (ii) the content, quality, nature, reliability, advertising, products or services on or available from such websites or resources as accessible through use of the Browser; or (iii) any opinions, advice, offers or other information on or available from such websites or resources. You should refer to the policies posted by other websites regarding privacy and other topics before you use them. If you choose to purchase any products or services from a third party, your relationship is directly with the third party. You agree that Skyfire is not responsible or liable for: (a) the quality of third party products or services; or (b) fulfilling any of the terms of your agreement with a third party seller, including delivery of products or services and warranty obligations related to such purchased products or services. You agree that Skyfire is not responsible or liable for any loss or damage of any sort you may incur from dealing with any third party.
Your access to and use of the Browser is at your own risk. Do not use the Browser where prohibited by law or during activities that require your full attention, or where there exists a significant risk of accident or injury resulting from the distraction created by such use.
From time to time, Skyfire may provide updates and/or new versions of the Browser and you agree to receive (and permit Skyfire to deliver) such software and to use (and will not prevent the updating and/or installation of) the most recent version of the Browser on your Device.
a. THE BROWSER IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SKYFIRE EXPLICITLY DISCLAIMS, FOR ITSELF AND ITS SUPPLIERS, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; (II) ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, USAGE, OR TRADE; AND (III) ANY WARRANTIES THAT THE INFORMATION OR RESULTS PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE BROWSER ARE ACCURATE, RELIABLE, COMPLETE, UP-TO-DATE, OR PRODUCE SPECIFIC OUTCOMES. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING BUSINESS LOSSES, DAMAGE TO YOUR COMPUTER SYSTEM, DAMAGES RESULTING FROM COMPUTER VIRUSES AND LOSS OF DATA, WHICH RESULT FROM YOUR USE OF OR ACCESS TO THE BROWSER. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE DOWNLOADED, USED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BROWSER IS DONE AT YOUR OWN DISCRETION AND RISK.
b. Skyfire makes no warranty that: (i) the Browser will meet your requirements; (ii) the Browser will be available on an uninterrupted, timely, secure or error-free basis; or (iii) the quality of any products, services, information or other material purchased or obtained by you through the Browser will meet your expectations, will be accurate, interoperable, compatible, timely, truthful, complete or reliable. Skyfire reserves the right to make changes or updates to the Browser, including but not limited to adding to, deleting, changing or improving any of the information, services, programs, interfaces and technology, at any time without notice.
14. Limitation of Liability
a. IN NO EVENT WILL SKYFIRE, ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE BROWSER, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SKYFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL SKYFIRE'S CUMULATIVE LIABILITY TO YOU EXCEED $10.
You agree that you will be personally responsible for your use of the Browser, and you agree to defend, indemnify and hold Skyfire, and its respective officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the "Skyfire Entities"), harmless from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Browser; (ii) your violation of these Terms; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; and (iv) any disputes or issues between you and any Carrier. Skyfire reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Skyfire' defense of such claim.
16. Dispute Resolution
These Terms shall be governed by and interpreted in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in Santa Clara County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right at any time to institute an action in any court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
17. Other Terms
In the event that any provision in these Terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. You may not assign these Terms (by operation of law or otherwise) without the prior written consent of Skyfire and any prohibited assignment will be null and void. Skyfire may assign these Terms or any rights hereunder without your consent. You agree that these Terms and the rules, restrictions and policies contained herein, and Skyfire's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Skyfire. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Skyfire in any respect whatsoever. These Terms together with the rules and policies of Skyfire constitute the entire agreement between Skyfire and you with respect to the subject matter hereof.
18. Contact Information
If you have any questions regarding these Terms, you may contact Skyfire at privacy[at]skyfire[dot]com.