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Ooma Mobile HD End User License Agreement

Last Updated: April 15, 2016

This Ooma Mobile HD End User License Agreement (this “Agreement”) constitutes a legal agreement between you (“customer”, “you” or “your”) and Ooma, Inc. and its subsidiaries, affiliates, agents, and/or licensors (“Ooma”, “we”, “us” or our), and governs your download and use of the Ooma Mobile HD application (the “Mobile App”) and the mobile calling service provided via the Mobile App (the “Service”) for use on the iPhone.

YOU REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND FULLY UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

You make this representation and agreement when you download and/or use the Mobile App.

You acknowledge and agree that this Agreement is between you and Ooma, not Apple Inc. (“Apple”), that Apple is acting as agent for Ooma in providing the Mobile App to you; that Apple is not a party to this Agreement; and that Ooma is solely responsible for the Mobile App and its content.

You acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of this Agreement, and that 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 hereof.

You acknowledge and agree that you may not use the Mobile App in any way that conflicts with or violates the Apple App Store’s Terms of Service, which are provided by Apple here: http://www.apple.com/legal/internet-services/itunes/us/terms.html#SALE.

NO 911 CALLING

THE MOBILE APP DOES NOT PROVIDE 911 SERVICE AND YOU SHOULD NOT USE OR RELY UPON THE MOBILE APP TO CALL 911. IN AN EMERGENCY EXIT THE MOBILE APP AND DIAL 911 FROM YOUR IPHONE’S CELLULAR PHONE DIALER.

YOU ACKNOWLEDGE AND AGREE THAT THE OOMA MOBILE APP IS NOT A SUBSTITUTE FOR A TRADITIONAL WIRED OR MOBILE TELEPHONE AND THAT YOU WILL NOT USE THE MOBILE APP TO CALL 911. IF YOU ATTEMPT TO USE THE MOBILE APP TO CALL 911, YOU DO SO ENTIRELY AT YOUR OWN RISK.

ADDITIONAL AGREEMENTS

Your use of the Mobile App is governed by this Agreement, the most recent version of the Standard Terms and Conditions for Agreement between Customers and Ooma, located at https://www.ooma.com/legal/terms-and-conditions, as well as the Inbound Ooma Mobile HD Summary of Terms of Service, available at https://www.ooma.com/legal/mobile-app-inbound-tos-summary and the Outbound Ooma Mobile HD Summary of Terms of Service, available at https://www.ooma.com/legal/mobile-app-outbound-tos-summary.

You may choose to purchase or use other Ooma products and services, including Ooma telephone devices and accessories, and your use of such other products and services will governed by the terms and conditions applicable to such products and services.

END USER LICENSE AND RESTRICTIONS

(a) Subject to the terms and conditions of this Agreement and upon activation of your Ooma service, Ooma hereby grants you a limited, personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license and right to use the Mobile App for the sole purpose of accessing the Service on any iPhone you own or control.

(b) Use of the Mobile App is limited to two (2) mobile devices. In order to receive inbound calls using the Mobile App you must subscribe to Ooma’s Premier Service.  If you are a Basic Residential Service customer you may not receive inbound mobile calls via the Mobile App.

(c) No Modifications: You will not modify, re-use, reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code or create derivative works from the binary code of any Ooma software or applications. You agree not to modify, intercept, capture, decode, simulate or redirect communication protocols used by Ooma for any purpose or make use of the Mobile App or the Service in a manner inconsistent with its intended purpose.

(d) No Hacking: You hereby represent and warrant that you will not make any effort to compromise the integrity or privacy of the communications of others;

(e) No Theft: You hereby represent and warrant that will not use the Mobile App or the Service in any manner to avoid Ooma’s charges or its policies.

(f) No Intellectual Property Rights: All intellectual property rights, including patents, copyrights, trademarks, service marks or other intellectual property rights, remain the sole and exclusive property of Ooma. Nothing in this Agreement shall be construed as granting any of these rights to you.

(g) No Resell Rights: You shall not sell, rent, lease, distribute, or provide service to a third party using the Mobile App or the Service without Ooma’s express prior written approval.

(h) New Versions of Software: Ooma has no obligation to, but may at its sole discretion, provide fixes, updates or upgrades to the Mobile App or its software.

(i) No Apple Maintenance or Support. In addition, you and Ooma acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App and that Ooma is solely responsible for the provision of maintenance and support to the extent such maintenance and support is required under applicable law.

TRADEMARKS AND COPYRIGHTS

Ooma, Ooma Hub, Ooma Scout, Ooma Telo, Ooma Telo Handset, Ooma HD2 Handset, Ooma Linx, Ooma Office, Ooma Mobile HD, Ooma Premier, Instant Second Line, the Ooma logo, and the sound of the Ooma dialtone are trademarks or service marks of Ooma, Inc. (together referred to as “Ooma’s Trademarks”). All other trademarks or service marks belong to their respective owners.

Ooma’s Trademarks may not be used in connection with any other product or service that is not sold or distributed by Ooma or in any manner that is likely to cause public confusion, or to disparage, or discredit Ooma. You may view and download content from the Ooma website (the “Website”) only for personal, non-commercial use, provided that you retain all copyright and other proprietary notices contained therein. You may not change or modify Ooma’s Trademarks in any way or reproduce, publicly display, distribute, or otherwise use Ooma’s Trademarks for any public or commercial purpose without the written permission of Ooma, Inc.

All content that appears within the Mobile App or on the Website, including, but not limited to text, graphics, logos, icons, images, audio and video clips, and downloads are the property of Ooma, Inc., and are protected by US and foreign copyright laws. Nothing contained herein, within the Mobile App or on the Website should be construed as granting any license or right to use Ooma’s Trademarks or materials protected by copyright for commercial purposes without the written permission of Ooma, Inc.

TERMINATION

Ooma reserves the right to modify immediately your use of the Mobile App, including by blocking access to the Service, if Ooma determines that your use of the Mobile App violates or has at any time violated this Agreement, any other applicable agreement between you and Ooma, or any applicable law, rule or regulation.

Upon termination of this Agreement by you or by Ooma, you (a) acknowledge and agree that all licenses and rights to use the Mobile App shall terminate, (b) will cease any and all use of the Mobile App, and (c) will remove the Mobile App from iPhones, hard drives, networks, and other storage media in your possession or under your control.

LEGAL COMPLIANCE AND EXPORT RESTRICTIONS

You agree to comply with all applicable U.S. and foreign laws that apply to Ooma as well as end-user, end-use, and destination restrictions imposed by U.S. and foreign governments. You agree to comply fully with all relevant export laws and regulations of the United States, including, but not limited to, the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security (the “U.S. Export Controls”). Without limiting the generality of the foregoing, you expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Mobile App or the Service or any direct product thereof to any destination, company, or person restricted or prohibited by U.S. Export Controls.

WARRANTY DISCLAIMER

THE MOBILE APP AND THE SERVICE PROVIDED HEREUNDER IS PROVIDED “AS IS,” AND OOMA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE MOBILE APP OR THE SERVICE WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE MOBILE APP OR THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, OR THAT THE MOBILE APP OR THE SERVICE IS ERROR FREE. ANY STATEMENTS AND DESCRIPTIONS CONCERNING THE MOBILE APP OR THE SERVICE BY OOMA OR ITS AGENTS OR REPRESENTATIVES ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. IN THE EVENT OF ANY FAILURE OF THE MOBILE APP TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE MOBILE APP TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MOBILE APP AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY APPLICABLE WARRANTY WILL BE OOMA’S SOLE RESPONSIBILITY. OOMA DOES NOT HEREBY WAIVE OR LIMIT THE WARRANTY DISCLAIMERS SET FORTH ABOVE.

LIMITATION OF LIABILITY

(a) Indirect, Consequential Damages: OOMA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, ASSIGNS, OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU OR US IN CONNECTION WITH THE SERVICE, SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGES ARISING FROM OR IN CONNECTION WITH PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, OR THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 SERVICE, OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES INCLUDING CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

(b) Direct Damages: OOMA’S LIABILITY TO YOU ON ACCOUNT OF ANY ACT OR OMISSION OF OOMA RELATED TO THIS AGREEMENT, INCLUDING ACTS OR OMISSIONS RELATED TO THE SERVICE OR ANY ATTEMPT TO CALL 911 VIA THE MOBILE APP, SHALL BE LIMITED IN AMOUNT TO THE TOTAL OF OOMA’S CHARGES COLLECTED FROM YOU DURING THE ONE (1) MONTH PERIOD PRECEDING THE ACT OR OMISSION AND SHALL BE FURTHER LIMITED TO RECOVERY OF ACTUAL DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR BODILY INJURY OR DEATH, PROXIMATELY CAUSED BY OOMA’S INTENTIONAL MISCONDUCT OR RECKLESSNESS. OOMA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES RESULTING FROM FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO), ACTS OF NATURE, STRIKES, FIRE, WAR, RIOT, ACTS OF TERRORISM, GOVERNMENT ACTIONS, OR ANY ACT OR OMISSION BY YOU OR ANY PERSON USING THE MOBILE APP; EQUIPMENT, NETWORK OR FACILITY FAILURE, SHORTAGE, UPGRADE, RELOCATION OR MODIFICATION; AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR, OR OTHER THIRD PARTY, INCLUDING BLOCKING OF PORTS BY AN INTERNET SERVICE PROVIDER OR OTHER IMPEDIMENT TO USAGE OF THE MOBILE APP CAUSED BY ANY THIRD PARTY; OR ANY OTHER CAUSE THAT IS BEYOND OUR REASONABLE CONTROL.

(c) Indemnifications: You agree to defend, indemnify, and hold harmless Ooma, its officers, directors, employees, affiliates, agents, assigns, and any other service provider who furnishes services to you or us in connection with the use of the Mobile App, from any and all claims, suits, actions, judgments, losses, damages (direct, indirect and consequential), fines, penalties, costs, and expenses (including, without limitation, attorney’s fees) by or on behalf of you or any third party relating to: (i) the use of the Mobile App; (ii) your violation of applicable laws, regulations or the terms and conditions of this Agreement; (iii) the transmission of any messages, content, images or other information; (iv) any claims for infringement of any intellectual property rights arising from or in connection with use of the Mobile App, or (v) any harm to any person resulting in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).

You and Ooma acknowledge that, in the event of any third party claim that your possession and use of the Mobile App infringes that third party’s intellectual property rights, Ooma, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

ARBITRATION

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM OOMA. In the unlikely event that Ooma has not been able to resolve a dispute it has with you, any member of your household, or any of your guests or any user of the Mobile App or the Service arising out of or relating to use of the Mobile App or the Service after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any Ooma claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the Judicial Arbitration and Mediation Services (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Santa Clara County, California, unless you and Ooma agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Ooma from seeking injunctive or other equitable relief from the courts as necessary to protect any of Ooma’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND OOMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

PRIVACY

Ooma’s privacy policy is available here: https://www.ooma.com/legal/privacy-policy.

GENERAL INFORMATION

You acknowledge that Ooma, not Apple, is responsible for addressing any claim by you or any third-party relating to the Mobile App, or to your possession and/or use of the Mobile App, including but not limited to:

  • (i) product liability claims;
  • (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and
  • (iii) claims arising under consumer protection or similar legislation.

The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.

This Agreement and the relationship between you and us are governed by the laws of the state of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with the arbitration provisions of this Agreement, such action shall only be brought in a court of competent jurisdiction in San Mateo County and you shall submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum.

If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

Ooma may assign this Agreement and any of its right or obligations hereunder at anytime. You may not assign your rights or delegate any of your duties under this Agreement, and any attempted assignment or delegation without such consent will be void. This agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

The section titles in this Agreement are for convenience only and have no legal or contractual effect.

Thank you!

An Ooma Office Sales Representative will be in touch shortly.

866-573-0707

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