Terms of Use

Last modified: August 23, 2012

Acceptance and Modification

1. Acceptance. Please carefully read the representations, warranties, conditions, covenants and agreements set forth below in this end user license agreement (the “Agreement”) as they contain the legal terms that govern Your use of Enflick, Inc.’s (“Enflick”, “We”, “Us” or “Our”) social networking service known as TextNow (“TEXTNOW”) and the App (as defined below). This Agreement is a binding contract between you (“You”, “Your” or the “User”) and Enflick and it explains Your rights and obligations when You use the App and TEXTNOW. In this Agreement “App” means the software application distributed by Enflick for use on Your Device (as defined below) in order to access TEXTNOW, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof; and “Device” means a mobile phone, smartphone, handset, tablet or other mobile device enabled for internet access and/or communication.

2. BY CLICKING “AGREE TO EULA AND PRIVACY POLICY” AS PART OF THE INSTALLATION PROCESS FOR THE APP, YOU (THE USER) ACKNOWLEDGE, ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT IN CONNECTION WITH YOUR USE OF BOTH THE APP AND TEXTNOW. BY NOT CLICKING “AGREE TO EULA AND PRIVACY POLICY”, YOU SHALL REFLECT THAT YOU DO NOT AGREE WITH THIS AGREEMENT AND YOU WILL NOT HAVE ACCESS TO THE APP OR TEXTNOW.

3. Modification. Enflick reserves the right to change the terms of this Agreement at any time by publishing the revised Agreement on the TEXTNOW website. The revised Agreement shall become effective within thirty (30) days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button (if this option is made available). Your express acceptance or Your continued use of TEXTNOW after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at http://www.textnow.com/eula.

Eligibility

4. Downloading of the App, use of TEXTNOW and registration for an account to use TEXTNOW (“Your Account”) is void where prohibited. You must be 13 years or older to use TEXTNOW (including, but not limited to, registering for an account). By registering for TEXTNOW, You represent and warrant that You are 13 or older and that You have the capacity to understand, agree to and comply with this Agreement. Your Account may be deleted and Your access to TEXTNOW may be terminated without warning if We believe that You are under 13 years of age.

NO EMERGENCY 911 CALLING CAPABILITIES

5. TEXTNOW does not feature all of the services of a mobile phone. You cannot make Emergency 911 calls using TEXTNOW.

Privacy Policy

6. Enflick’s policies and procedures with respect to its collection, use and disclosure of Your personal information are governed by Our privacy policy located at http://textnow.com/privacy (the “Privacy Policy”), which is incorporated into this Agreement by reference. The Privacy Policy provides Your rights and Our responsibilities with regard to Your personal information. We will not use Your information in any way inconsistent with the purposes and limitations provided in the Privacy Policy or as otherwise consented or agreed to by You.

License from Enflick

7. Subject to the terms and conditions of this Agreement, Enflick hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable license to: (i) download, install and use the App on Your Device for the sole purpose of personally using TEXTNOW; and (ii) use TEXTNOW together with the App in accordance with this Agreement.

8. Unless Enflick has given You specific written permission to do so, You may not assign (or grant a sub-license of) Your rights to use the App or otherwise transfer any part of Your rights to use the App.

Your Account

9. During the registration and set-up for Your Account, You will be required to provide Us with certain information about Yourself including, without limitation, Your email address and, depending on the Device that You use, Your telephone number. As part of the registration process for Your Account, You will choose a password (the “Password”) for Your authorized access and use of TEXTNOW. Your Password are unique to You alone. Without them, no one can log-in to Your Account. You must carefully select Your Password so that it cannot be easily guessed by anyone else. You agree to keep Your Password absolutely confidential, and ensure it is never disclosed, accidentally or otherwise, to anyone else. You are fully responsible for all activities that occur under Your Account.

10. You represent and warrant to Enflick that: (i) all required registration information You submit is truthful and accurate; (ii) that You will maintain the accuracy of such information; and (iii) Your use of the App and TEXTNOW does not violate any applicable laws. You agree to maintain accurate information by providing updates to Enflick, as needed. You agree that We may use and rely on any such information provided by You for all purposes in connection with Your use of TEXTNOW, subject to the Privacy Policy. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if We have reasonable grounds to suspect that such information is inaccurate, not current, false, misleading or incomplete, We have the absolute right, in Our sole discretion, to terminate or suspend Your access to TEXTNOW and to Your Account (which will also result in You not being able to use the App). You agree to immediately notify Us of any unauthorized use, or suspected unauthorized use, of Your Account or any other breach of security. Enflick shall not be liable for any loss or damage arising from Your failure to comply with the above requirements.

License from You for Your Content

11. We require certain rights to the messages, information, data, text, images, graphics or other materials (collectively, the “Content”) that You transmit, post, make available, submit or otherwise communicate to or through TEXTNOW (“Your Content”) (expressly excluding Your user data and personal information, which is collected in accordance with the Privacy Policy) in order to operate certain features of TEXTNOW. We do not claim any intellectual property rights in Your Content. As between Enflick and You, You own, or have the rights to, Your Content at all times. By submitting, transmitting, making available or posting Your Content through TEXTNOW, You grant Us a world-wide, royalty free, perpetual, irrevocable and non-exclusive right and license to use, sublicense, reproduce, modify, adapt, publish, translate, distribute, perform and display Your Content worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the purposes of operating and providing TEXTNOW.

12. By transmitting, posting, making available, submitting or otherwise communicating Your Content to or through TEXTNOW, You represent and warrant to Enflick that You own, have a license to or otherwise control all of the rights to Your Content, and that Our use of Your Content (in accordance with this Agreement) will not infringe or violate the rights of any third party including, but not limited to, any privacy or intellectual property rights, or constitute violation of any applicable law. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any of Your Content.

13. You shall not have any right to terminate the licenses to Your Content granted in this Agreement, nor to seek, obtain, or enforce any injunctive or other equitable relief against Enflick in connection with its use of Your Content in accordance with the this Agreement, all of which such rights are hereby expressly and irrevocably waived by You in favour of Enflick.

14. WE ARE NOT OBLIGATED TO BACK-UP ANY OF YOUR CONTENT AND YOU ACKNOWLEDGE AND AGREE THAT ANY OF YOUR CONTENT MAY BE DELETED AT ANYTIME. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UP COPIES OF YOUR CONTENT IF YOU DESIRE.

Collection and Use of Personal Information

15. Collection of Personal Information: Your use of the TEXTNOW may involve the collection, use and disclosure of personal information to or by Enflick, and by agreeing to this Agreement You consent to Enflick’s collecting, using or disclosing personal information in order to facilitate TEXTNOW and for the purposes described in this Agreement and the Privacy Policy. You are responsible for all activities undertaken by You using TEXTNOW (including, without limitation, any social networking and personal update features made available through TEXTNOW). You should give due consideration before agreeing to have Your personal information disclosed to other persons. Personal Information provided by You will be stored on servers operated by or on behalf of Enflick in the United States or other countries that may have less protective data protection laws that the region in which You are situated. If You are a resident of the European Economic Area, Your personal information will be transferred outside of the European Economic Area for processing and storage on Enflick’s behalf or to facilitate the use or functioning of TEXTNOW and associated services.

Conduct

16. TEXTNOW is a community oriented service. Please remember that any Content that You post, submit or otherwise communicate to or through TEXTNOW is Your own responsibility and We expect You to take utmost care to ensure that it remains friendly, courteous, respectful of others and is compliance with this Agreement. You are required to comply with all applicable laws in connection with Your use of TEXTNOW and such further limitations as may be set forth in this Agreement and in any written or on-screen notice from Enflick. You may not use TEXTNOW for any purpose that is unlawful or prohibited by this Agreement or that otherwise harms Enflick, its affiliates, its service providers, suppliers or customers.

17. You agree that You will not use TEXTNOW to post, transmit, make available, submit or otherwise communicate any Content that: (i) is harmful or obscene; (ii) is defamatory, slanderous, libelous, harassing or abusive other otherwise harasses or advocates harassment of another person; (iii) contains nudity, pornography, excessive violence, or offensive subject matter or contains a link to an adult website; (iv) constitutes or promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, defamatory or libelous; (v) infringes the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of any person or entity; (vi) constitutes “spam”, advertising or promotion of commercial services or products and or attempts to fundraise or solicit money from any other TEXTNOW user; (vii) or contains, or contains links to, files that contain viruses, malware, corrupted files, or any other similar software, programs or files.

18. You shall not, directly or indirectly, to do any of the following acts in connection with Your use of TEXTNOW or the App: (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of TEXTNOW or the App; (ii) modify, translate, or create derivative works based on TEXTNOW or the App; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit TEXTNOW or the App or make TEXTNOW or the App available to a third party other than as contemplated in this Agreement; (iv) use TEXTNOW or the App for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) transfer, publish or disclose to third parties any evaluation of TEXTNOW or the App without Enflick’s prior written consent; (vi) create any link to TEXTNOW or the App or frame or mirror any content contained or accessible from, TEXTNOW or the App; or (vii) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with Your use of TEXTNOW or the App, which may include, but not be limited to, the Personal Information Protection and Electronic Documents Act (Canada) and similar provincial legislation in Canada enacted from time to time, and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws.

19. Enflick reserves the right to investigate and take appropriate action against anyone who, in Enflick’s sole discretion, violates Sections 18,19 or 20. Any use or misuse of TEXTNOW in a manner that is disruptive, damaging, unlawful, offensive or intrusive as determined by Enflick, in its sole discretion, shall be a breach of the terms of this Agreement, which shall result in Enflick terminating this Agreement (and Your Account) in accordance with Section 30 below.

20. You acknowledge and additionally agree that, in accordance with the Privacy Policy, We reserve the right to disclose any information, including Your identity, as necessary to satisfy any legal, regulatory or other governmental request.

Violations and Complaints

21. Despite Our safety and privacy controls, We cannot guarantee that You will not encounter inappropriate or illegal conduct from other users of TEXTNOW. Consequently, if You encounter such content and/OR conduct, You can help Enflick by notifying us of any inappropriate or illegal conduct or content (such as, nudity or pornography, or harassing statements, unwelcome contact or fraud) by visiting http://support.enflick.com. The reporting of complaints will be confidential and once a complaint is received, We will first acknowledge the receipt of Your complaint and then take steps to address the complaint that may include, but is not limited to, removing the offending content or to warn or, as appropriate, to prevent from TEXTNOW those transmitting such content or engaging in such conduct. We will also promptly provide You with an explanation of the steps taken to address the complaint.

Intellectual Property Rights

22. All copyright rights in the text, images, photographs, graphics, user interface, and other content provided on the App, and the selection, coordination, and arrangement of such content, are owned by Enflick, or its applicable third party licensors, to the full extent provided under applicable copyright laws.

23. All rights in the product names, company names, trade names, logos and designs of Enflick or third party products or services that form part of TEXTNOW or the App, whether or not appearing in large print or with the trademark symbol, belong exclusively to Enflick or their respective owners, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws, as applicable. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited and nothing stated or implied on this Agreement confers on You any license or right under any patent, copyright or trademark of the Enflick or any third party.

Third Party Content and Links

24. TEXTNOW may be supported by advertising revenue and may display advertisements and promotions provided by third party partners or providers. The manner, mode and extent of advertising on TEXTNOW are subject to change without specific notice to You. In consideration for Enflick granting You access to and use of TEXTNOW, You agree that Enflick may place or allow the placement of such advertising on TEXTNOW.

25. Using TEXTNOW may result in the display of results, advertisements or other content that contain(s) hyper-links to or suggestions or results for websites, locations, products, services or activities. Such websites, advertisements, products, services or activities are not created or controlled by Enflick (collectively, “Third Party Services”), are wholly independent from Enflick and as such are intended for convenience only. Enflick shall not be responsible for the contents of, updates to, or privacy practices of these third parties, which may differ from those of Enflick. You acknowledge and agree that Third Party Services are not under the control of Enflick, are in no way endorsed by Enflick and Enflick is not responsible for the content, use, accuracy, completeness, usefulness, timeliness, copyright compliance, availability, legality or any other aspect of such Third Party Services. The personal data you may choose to give to the providers such Third Party Services are not covered by the Privacy Policy. Third Party Services may not be available in all languages or in all countries. Enflick makes no representation that such Third Party Services are appropriate or available for use in any particular location. To the extent You choose to access such Third Party Services, You do so at Your own initiative and are responsible for compliance with any applicable laws, including, but not limited, to applicable local laws. Enflick, and its licensors, reserve the right to change, suspend, remove, or disable access to any Third Party Services at any time without notice. In no event will Enflick be liable for the removal of or disabling of access to any such Third Party Services. Enflick may also impose limits on the use of or access to certain Third Party Services, in any case and without notice or liability.

Feedback/Suggestions

26. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the App or TEXTNOW (collectively, “Submissions”) provided by You to Us are solely Your Submissions and not that of a third party, are non-confidential to You and shall become the sole property of Enflick. Enflick shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. You hereby waive to and in favour of Enflick Your moral rights in and to Submissions made by You.

Term and Termination

27. Term. The term of this Agreement (“Term”) will commence, and You may begin using the App and TEXTNOW, once You agree to this Agreement. The Agreement will remain in effect until terminated by You or Us in accordance with Section 30 below.

28. Termination. You may terminate this Agreement with immediate effect at any time. Without limiting other remedies, Enflick may limit, suspend, or terminate this Agreement and Your use of TEXTNOW, the App, prohibit access to TEXTNOW and delete Your User Account, with immediate effect, automatically if We think that You are in breach of this Agreement, creating problems, legal liabilities (actual or potential), infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Enflick shall effect such termination by providing notice to You to the email address You have provided to, and/or by preventing Your access to Your User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.

29. Consequences of Termination. Upon termination of this Agreement: (a) all licenses and rights to use the App and TEXTNOW shall immediately terminate; (b) You will immediately cease any and all use of the App and TEXTNOW; and (c) You will immediately remove the App from Your Devices and all copies of the App in Your possession or under Your control.

Indemnification

30. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD ENFLICK HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE LEGAL FEES INCURRED BY ENFLICK, IN CONNECTION WITH OR ARISING OUT OF YOUR: (I) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; (II) VIOLATION OF ANY RIGHTS OF ANY THIRD-PARTY; (III) USE OR MISUSE OF THE APP AND/OR TEXTNOW; OR (IV) YOUR CONTENT.

Disclaimer of Warranties and Limitation of Liability

31. No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEXTNOW AND THE APP ARE PROVIDED “AS IS” WITH NO WARRANTIES OR CONDITIONS WHATSOEVER; ENFLICK DOES NOT, MAKE ANY WARRANTIES, CLAIMS, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO TEXTNOW INCLUDING, BUT NOT LIMITED TO THE APP, WHETHER EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. ENFLICK FURTHER DOES NOT REPRESENT OR WARRANT THAT TEXTNOW OR THE APP, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES ENFLICK WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH TEXTNOW.

32. Data and Access Disclaimer: TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, THE FAILURE TO STORE, THE MISDELIVERY, OR THE UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL INCLUDING, WITHOUT LIMITATION, ANY OF YOUR CONTENT. WE DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY CONTENT THROUGH TEXTNOW OR THE APP. BY USING TEXTNOW OR THE APP, YOU ACKNOWLEDGE AND AGREE THAT TECHNICAL PROCESSING AND TRANSMISSION OF INFORMATION USING TEXTNOW MAY INVOLVE TRANSMISSIONS OVER VARIOUS NETWORKS AND CHANGES TO CONFORM AND ADAPT TO TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS OR DEVICES. ENFLICK IS, AND SHALL, NOT BE RESPONSIBLE OR LIABLE FOR ANY: (A) INCORRECT OR INACCURATE TRANSCRIPTION OF INFORMATION; (B) HUMAN ERROR OR PRINTING ERROR; (C) INTERRUPTION, DELETION, OMISSION, DEFECT, OR LINE FAILURE OF ANY TELEPHONE NETWORK OR ELECTRONIC TRANSMISSION; (D) PROBLEMS RELATING TO YOUR DEVICE OR ANY OTHER COMPUTER EQUIPMENT, SOFTWARE, INABILITY TO ACCESS THE APP OR TEXTNOW; OR (E) OTHER TECHNICAL OR NON-TECHNICAL ERROR OR MALFUNCTION.

33. Specific Disclaimers:

(a) YOU ACKNOWLEDGE AND AGREE THAT: (I) TEXTNOW CANNOT TRANSMIT COMMUNICATIONS OR OTHER ELECTRONIC REQUESTS TO DEVICES THAT ARE UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.); AND (II) THAT TEXTNOW IS NOT A SERVICE TO BE RELIED UPON AS THE SOLE MEANS OF RECEIVING CRITICAL INFORMATION.
(b) IN NO EVENT SHALL ENFLICK’S CHANNEL PARTNERS (INCLUDING, WITHOUT LIMITATION, DISTRIBUTORS OR SALES AGENTS) OR ANY AIRTIME SERVICE PROVIDER (COLLECTIVELY, “APP PROVIDERS”) BE LIABLE FOR THE SALE, DISTRIBUTOR OR YOUR USE OF THE APP OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APP. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE APP PROVIDERS SHALL BE THIRD PARTY BENEFICIARIES TO THIS SECTION 35(b).

34. No Liability: TEXTNOW and the App are being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ENFLICK, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF TEXTNOW OR THE APP, AS SET FORTH BELOW. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH TEXTNOW OR THE APP IS TO IMMEDIATELY UNINSTALL AND CEASE USE OF THE APP AND TEXTNOW.

35. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ENFLICK, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR:
(a) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE TEXTNOW OR THE APP;
(b) ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE TEXTNOW OR THE APP; OR
(c) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF: (I) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING TEXTNOW; (II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY ENFLICK FOR ANY REASON; OR (III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE APP TO YOU.

36. THE LIMITATIONS ON ENFLICK’S LIABILITY TO YOU IN PARAGRAPH 37 ABOVE SHALL APPLY WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.

37. NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL ENFLICK’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT OF ONE-HUNDRED DOLLARS ($100.00) CANADIAN. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.

38. Jurisdiction’s Limitations As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited to the maximum extent possible within the applicable legislation.

Additional Terms.

39. App Merchants: You acknowledge and agree that the availability of the App is dependent on the third party from which You downloaded or received the App (the “App Merchant”). You acknowledge that this Agreement is between You and Enflick and not with the App Merchant. Enflick, not the App Merchant, is solely responsible for the App and TEXTNOW, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto. You agree to pay all fees charged by the App Merchant in connection with Your download of the App (if any). You agree to comply with, and Your license to use the App and TEXTNOW is conditioned upon Your compliance with, all applicable third party terms of agreement when using the App. You acknowledge that to the maximum extent permissible by law, the App Merchant (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.

40. Blackberry Devices: If You are using the App on Your Blackberry device, use of the App requires the BlackBerry Internet Service (BIS) Browser. Check with Your service provider and/or administrator if the “Internet Browser” option is available in Your browser options.

41. Data Charges: You acknowledge and agree that the App and use of TEXTNOW uses network services and may incur additional network data charges (including additional charges when roaming).

42. Apple Devices: If You download the App from the Apple app store (the “App Store”) or use the App to run on the Apple Inc. (“Apple”) operating system (“iOS”), such as with the iPhone, iPod TEXTNOW, iPad or other related device using such iOS, the following terms will also apply and You acknowledge and agree to the following terms:
(a) Acknowledgement: Enflick and You acknowledge that this Agreement is concluded between Enflick and You only, and not with Apple, and Enflick, not Apple, is solely responsible for the TEXTNOW and the App and the content thereof. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 44, the more restrictive or conflicting terms and conditions in this Section 44 apply, but solely with respect to the use of TEXTNOW and the App when used on iOS.
(b) Scope of License: The license granted to You for the App is limited to a non-transferable license to use the App on any iOS Device that You own or controls and as permitted by the Usage Rules set forth in the App Store terms of service (http://www.apple.com/legal/itunes/appstore/dev/stdeula/).
(c) Maintenance and Support: Enflick is solely responsible for providing any maintenance and support services with respect to TEXTNOW and the App, as specified in this Agreement (if at all), or as required under applicable law. Enflick and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty: Enflick is solely responsible for any product warranties with respect to TEXTNOW and the App, whether express or implied by law, to the extent not otherwise disclaimed. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to You; and that, 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 Enflick’s sole responsibility.
(e) Product Claims: Enflick and You acknowledge that Enflick, not Apple, is responsible for addressing any claims of You or any third party relating to TEXTNOW and the App or Your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Enflick’s liability to You beyond what is permitted by applicable law.
(f) Intellectual Property Rights: Enflick and You acknowledge that, in the event of any third party claim that the TEXTNOW or the App or Your possession and use of that App infringes that third party’s intellectual property rights, Enflick and/or You, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) Third Party Beneficiary: Enflick and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, 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 the Agreement against You as a third party beneficiary thereof.

Miscellaneous

43. Entire Agreement: This Agreement, together with the Privacy Policy, constitute the entire agreement between You and Enflick with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. Nothing in this clause shall exclude or restrict the liability of either You or Enflick arising out of fraud or fraudulent misrepresentation.

44. Survival: Any terms and conditions of this Agreement which by their nature extend beyond the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement including, without limitation, Sections 9 – 13, 24 – 28, 31 – 45, 47 – 53 shall survive any termination of this Agreement.

45. Governing Law: This Agreement is governed, construed and interpreted by the law of the Province Ontario and the federal laws of Canada applicable in that Province without regards to conflict of laws principles. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada and the venue of the courts of Ontario sitting in the City of Kitchener, Ontario, Canada in respect of any disputes relating to or arising out of this Agreement. The parties specifically disclaim the United Nations Convention on Contracts for the International Sale of Goods.

46. Language. The Parties have expressly required that this Agreement, any communication and all other contracts, documents and notices relating to this Agreement be drafted in the English language. Les parties ont expressément exigé que la présente convention, la communication et tous les autres contrats, documents et avis qui y sont afférents soient rédigés dans la langue anglaise.

47. Severability: If any of the provisions (or parts thereof) contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) of this Agreement.

48. Headings: The use headings are for convenience only and are not part of this Agreement.

49. Relationship: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.

50. Waiver: Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.

51. Assignment: You may not assign any rights or obligations under the Agreement and any purported assignment shall be ineffective. Enflick may assign or delegate all rights and obligations under this Agreement without notice to You.

Should You have any questions concerning this Agreement, contact the Enflick at:

Enflick, Inc.
375 Hagey Blvd, Suite 310
Waterloo, ON
N2L 3X2
Canada
Email: legal@enflick.com