Customer Contract - Pandigital Photo Mail PAN8008DW User Manual

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3. No Licenses. For the avoidance of doubt, all communications and/or broadcasting features, functions and/or technologies of any products and/or services

which enable or permit the transmission and/or receipt of communications and/or broadcasting signals (such as and without limitation CDMA (including, without

limitation, cdmaOne, cdma2000 and RTT MC), EV-DO, EV-DV, HSDPA, HSUPA, HSPA+, TD-CDMA, TD-SCDMA, WCDMA, UMTS, OFDM, OFDMA, FLO,

GSM, GPRS, EDGE, TDMA, DVB-H, ISDB-T, T-DMB, DVB-T, DAB, 3GPP LTE, WiMax, WiFi, UMB, 802.11, 802.16, 802.20, etc.) are not included in the

licenses or any other rights granted to you under this EULA, either expressly or by implication, estoppel or otherwise.

4. Ownership. You agree that PANDIGITAL and its licensors retain all right, title and interest in and to the Software and all copies of the Software, including all

copyrights therein. PANDIGITAL retains all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual

trademarks or registered trademarks in the United States and/or other countries.

5. Security Software. The Software includes rights management technology ("Security Software") to protect the integrity of content ("Secure Content") so that

certain intellectual property rights, including copyright, are not misappropriated. Portions of the Software use Security Software to make Secure Content

available for viewing. If the Secure Software's security has been compromised, then the Secure Content may not display and/or play. PANDIGITAL may require

you to upgrade some of the Software before accessing content. When you attempt to view such content, the Device will ask you to upgrade the Software and

you may need to synch the Device with your computer or contact PANDIGITAL by telephone. If you decline to upgrade, you may not be able to access content

on the Device.

6. Upgrades. To use Software identified as an upgrade, you must first be licensed for the software identified by PANDIGITAL as eligible for the upgrade. After

upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility. You acknowledge and agree that PANDIGITAL may

automatically check the version of the Software and/or its components that you are utilizing and may provide upgrades or fixes to the Software.

7. Technical Information. You agree that PANDIGITAL and its affiliates may collect and use technical information related to the Device, the PANDIGITAL Service

and your usage thereof. PANDIGITAL's use of such information is further described in our privacy policy located at ww.pandigital.net/legal/privacy-statement.

8. Termination. This Agreement shall terminate immediately, without notice, if you fail to comply with any material term of this Agreement. In addition,

PANDIGITAL may terminate this Agreement at any time upon notice to you and by posting notice on PANDIGITAL's website located at ww.pandigital.net. Upon

termination you agree to immediately erase the Software from your Device and personal computer. Sections 2, 3, 4 and 8-14 shall survive the expiration or

termination of this EULA.

9. Disclaimer of Warranty. THE SOFTWARE IS LICENSED TO YOU "AS IS." PANDIGITAL IT'S MANUFACTURERS, LICENSORS AND THEIR RESPECTIVE

AFFILIATES DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT

LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A

PARTICULAR PURPOSE. PANDIGITAL, IT'S MANUFACTURERS, LICENSORS AND THEIR RESPECTIVE AFFILIATES DO NOT WARRANT THAT THE

OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF

IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS.

10. WAIVER OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PANDIGITAL OR IT'S

LICENSORS, MANUFACTURERS AND THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT

DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF

THIS EULA (INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS

INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF

REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF PANDIGITAL OR ITS

LICENSORS, MANUFACTURERS AND THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT

LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE

LIABILITY (IN THE AGGREGATE) OF PANDIGITAL, ITS LICENSORS, MANUFACTURERS AND THEIR RESPECTIVE AFFILIATES UNDER ANY

PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED

BY PANDIGITAL WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO US $30.00. THE FOREGOING LIMITATIONS,

EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 9, 10 AND 11) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE

LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

12. Export. The Software is subject to the export control laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws

and regulations.

13. U.S. Government End Users. This section only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S.

Government. The Software is "commercial computer software" developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their

successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this Agreement.

14. Miscellaneous. This EULA is governed by the laws of the State of California, USA, without regard to California's conflict of law principles. The United Nations

Convention on Contracts for the Sale of International Goods does not apply to this EULA. If any provision hereof is held illegal, invalid or unenforceable, in

whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and

enforceability of all other provisions of this EULA shall not be affected thereby. Current versions of PANDIGITAL's Privacy Statement, which describes our

privacy policies, and PANDIGITAL Customer Contract , which sets forth the terms and conditions of the PANDIGITAL service, are hereby incorporated by

reference and available for your review at ww.pandigital.net/legal/privacy-statement and ww.pandigital.net/legal/customer-contract respectively. This EULA

constitutes the entire agreement between you and PANDIGITAL regarding its subject matter and supersedes any prior or contemporaneous agreement,

whether written or oral, relating to the subject matter of this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal the provisions

of this EULA shall continue in full force and effect. To the extent any PANDIGITAL policies or programs for support services conflict with the terms of this EULA,

the terms of this EULA shall control. This EULA may be updated from time to time.

C u s t o m e r C o n t r a c t

I. PANDIGITAL Incorporated ("PANDIGITAL") Customer Contract

Thank you for choosing PANDIGITAL. Please read this Contract carefully. This is the contract that applies to your paid, trial, promotional and other PANDIGITAL

subscriptions and use of PANDIGITAL service (the "Contract"). By using the PANDIGITAL service, you are accepting this Contract and you are bound by its terms

and conditions. This Contract applies to all of the services provided to you by FLOTV. Please keep in mind that the PANDIGITAL Privacy Statement and the End

User License Agreement ("EULA") for your PANDIGITAL device(s) ("Device") are additional contracts by which you also are bound, both of which are incorporated

herein and shall become a part of this Contract. If there are any express conflicts between this Contract and your EULA or the PANDIGITAL Privacy Statement, the

EULA or the PANDIGITAL Privacy Statement will govern. For a copy of the PANDIGITAL Privacy Statement, please visit. A copy of the EULA may be found in the

documents included in your Device package at the time of purchase or at www.pandigital.net/legal and www.pandigital.net/legal/ptv350-eula. Please keep this

Contract, a copy of the PANDIGITAL Privacy Statement and the EULA for your records. You can obtain updated copies of this Contract by visiting our website at

www.pandigital.net/legal/customer-contract or by emailing us at the email address located at customercare@flotv-support.com or by calling 888-99FLOTV.

Acceptance of this Contract:

THIS CONTRACT STARTS WHEN YOU ACCEPT. You accept when you do any of the following things:

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