Fogozine Terms of Use

Last Updated: 9 November 2010

Fogo Media, LLC (“Fogo Media”, or “we”) provides our users the ability <fill in brief description of service> from either third party content aggregation services (“CASs”) or general web content. The services offered by Fogo Media include our software applications (including any updates, new versions or new releases thereof) for use on mobile devices including, but not limited to, Apple’s iPad (each a “Fogozine Application”), our website located at www.fogozine.com (“Site”) and any other services offered by Fogo Media in connection with our Fogozine Application or the Site (any and all of the foregoing the “Services”). The Services do not include any third party service you may choose to access via the Services.

Please read the following terms and conditions (“Terms of Use”) carefully. These Terms of Use govern your access to and use of the Site, Services and Fogozine Content (defined below) and set forth the legally binding terms for your use of the Site, Services and Fogozine Content, whether or not you are a Fogozine App User (defined below) or a visitor just browsing the Site. A “Fogozine App User” is a person who has downloaded and installed a copy of the Fogozine Application on his or her mobile device.

SPECIAL NOTE TO FOGOZINE APP USERS: Without limiting any other terms of these Terms of Use, by using a CAS via the Services you understand and agree that Fogo Media will access and store your CAS account information and content so that they are available to you through your use of the Fogozine Application and you give Fogo Media permission to do so.

Certain areas of the Site and Services (and your access to or use of Fogozine Content) may have different terms and conditions posted or may require you to agree to and accept additional terms and conditions. If there is a conflict between these Terms of Use and terms and conditions posted for a specific area of the Site, Services or Fogozine Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or Fogozine Content.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE FOGOZINE APPLICATION, SITE, OR SERVICES, BY DOWNLOADING THE FOGOZINE APPLICATION OR POSTING OR ACCESSING ANY CONTENT ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR FOGOZINE CONTENT.

Modification

Fogo Media reserves the right, in its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms of Use, at any time and without prior notice. If we modify these Terms of Use, we will post the modification on the Site or within the Fogozine Application or otherwise provide you with notice of the modification. We will also update the “Last Updated Date” in these Terms of Use. By continuing to access or use the Site or Services (including any Fogozine Application) after we have posted a modification to these Terms of Use or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Use. If the modified Terms of Use are not acceptable to you, your only recourse is to cease using the Site and Services.

Eligibility and Access

The Site, Services and Fogozine Content are intended solely for persons who are 13 or older. Any access to or use of the Site, Services and Fogozine Content by anyone under 13 is expressly prohibited. By accessing or using the Site, Services and Fogozine Content you represent and warrant that you are 13 or older.

You agree to provide accurate, current and complete information to Fogo Media in connection with your use of the Site and Services. You will immediately notify Fogo Media of any unauthorized use of your Fogozine Application and you will not use the Fogozine Application to access or use third party services to which you do not have the right to access. Fogozine reserves the right to suspend or terminate your access to the Site and Services if any information provided to Fogo Media in connection with your use of the Site and Services proves to be inaccurate, not current or incomplete. If you are not a Fogozine App User you may browse all areas of the Site or use the parts of the Services that are not limited to Fogozine App Users only.

Third Party Materials and Agreements

You may be able to access or use third party services, resources, content or information (“Third Party Materials”) via the Fogozine Application. You acknowledge sole responsibility for and assume all risk arising from your access to or use of any such Third Party Materials and Fogo Media disclaims any liability that you may incur arising from your access to or use of such Third Party Materials or User Content (defined below) via a Fogozine Application. You acknowledge and agree that Fogo Media: (a) is not responsible for the availability or accuracy of such Third Party Materials or the products or services on or available from such Third Party Materials; and (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to or use of such Third Party Materials. Your ability to access or link to Third Party Materials or third party services (including any CAS) does not imply any endorsement by Fogo Media of Third Party Materials or any such third party services.
If you have obligations to any third party, as a non limiting example, such as under the terms, conditions or policies of a CAS, you and not Fogo Media are responsible for your compliance with those obligations. By allowing you to use the Services, Fogo Media does not suggest, warrant or guaranty that your access to any third party service (or any Third Party Materials therein) in connection with your use of the Services is permitted by that third party service, nor does Fogo Media suggest, warrant or guaranty that your use complies with any laws or regulations that may apply to your use of any third party service. Fogo Media is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your activities while you use the Site and Services.

Privacy

See Fogo Media’s Privacy Policy located at fogomedia.com/privacy for information and notices concerning Fogo Media’s collection and use of your personal information. If you have any questions about the Fogo Media Privacy Policy, please contact Fogo Media at privacy@fogomedia.com.

Certain Definitions Certain types of content are made available through the Site and Services. “Fogozine Content” means Fogo Media proprietary content, including but not limited to, Fogo Media trademarks and logos, made available through the Site and Services, excluding Third Party Materials and User Content. “User Content” means the text, data, graphics, images, photos, video or audiovisual content, hypertext links and any other content that a Fogozine user provides directly to Fogo Media via the Site and Services, as applicable.

Ownership

The Site, Services and Fogozine Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Use, Fogo Media and its licensors exclusively own all right, title and interest in and to the Site, Services and Fogozine Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Fogozine Content. Fogo Media claims no ownership interest in any Third Party Materials and expressly disclaims any and all liability relating thereto.

Fogozine Application License

License Grant. Subject to your compliance with the terms and conditions of these Terms of Use, Fogo Media grants you limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install a copy of the Fogozine Application onto a single mobile device that you own and control and run such copy of the Fogozine Application solely for your internal personal use. Furthermore, with respect to any iTunes Store Sourced App (defined below) you will only use the iTunes Store Sourced App as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Fogo Media reserves all rights in the Fogozine Application not expressly granted to you in these Terms of Use.

Restrictions. Except as expressly specified in these Terms of Use, you may not (a) copy or modify the Fogozine Application, including, but not limited to adding new features or otherwise making adaptations that alter the functioning of the Fogozine Application; (b) transfer, sell, rent, lease, distribute, sublicense or otherwise assign any rights to, or any portion of, the Fogozine Application to any third party; or (c) make the functionality of the Fogozine Application available to multiple users through any means, including, but not limited to distribution of the Fogozine Application or by uploading the Fogozine Application to a network or file-sharing service or through any hosting, application services provider or any other type of service. The Fogozine Application contains trade secrets, and in order to protect those secrets you agree not to disassemble, decompile or reverse engineer the Fogozine Application, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will comply with any technical restrictions in the Fogozine Application that allow you to use the Fogozine Application only in certain ways.

Updates and Upgrades; No Obligation. Fogo Media is not obligated to maintain or support the Fogozine Application, or to provide you with updates, upgrades or services related thereto. You acknowledge that Fogo Media may from time to time in its sole discretion issue updates or upgrades to the Fogozine Application, and may automatically update or upgrade the version of the Fogozine Application that you are using on your mobile device. You consent to such automatic updating or upgrading on your mobile device, and agree that the terms and conditions of these Terms of Use will apply to all such updates or upgrades.

Term and Termination. The license to the Fogozine Application granted under these Terms of Use remains in effect for a period of 75 years, unless earlier terminated by you or Fogo Media in accordance with this provision. You may terminate the license at any time by destroying all copies of the Fogozine Application in your possession or control. Without limiting any other terms of these Terms of Use, the license will automatically terminate without notice from Fogo Media if you breach any terms of these Terms of Use. Upon any termination of these Terms of Use you must cease all use of the Fogozine Application and promptly delete and destroy all copies, full or partial, of the Fogozine Application.

Proprietary Rights. The copy of the Fogozine Application is licensed, not sold, to you. You agree that Fogo Media and its licensors own all right, title and interest in and to the Fogozine Application, including all intellectual property rights therein, and that Fogo Media retains ownership of all copies of the Fogozine Application even after installation on your mobile device. The Fogozine Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Fogozine Application as delivered to you.

U.S. Government End Users. The Fogozine Application and related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Fogozine Application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Fogozine Application and related documentation will be only those specified in these Terms of Use.

Export Control. You may not use, export, re-export, import, or transfer the Fogozine Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Fogozine Application, and any other applicable Laws. In particular, but without limitation, the Fogozine Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Fogozine Application, you represent and warrant that you are not located in any such country or on any such list. You also will not use the Fogozine Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

Fogozine Application from iTunes. The following applies to any Fogozine Application accessed through or downloaded from the Apple iTunes Store (“iTunes Store Sourced App”):

You acknowledge and agree that (i) these Terms of Use are concluded between you and Fogo Media only, and not Apple, and (ii) Fogo Media, not Apple, is solely responsible for the iTunes Store Sourced App and content thereof. Your use of the iTunes Store Sourced App must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes Store Sourced App.
In the event of any failure of the iTunes Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes Store Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Fogo Media’s sole responsibility.
You and Fogo Media acknowledge that, as between Fogo Media and Apple, Apple is not responsible for addressing any claims of you or any third party relating to the iTunes Store Sourced App or your possession and use of the iTunes Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Fogo Media acknowledge that, in the event of any third party claim that the iTunes Store Sourced App or your possession and use of that iTunes Store Sourced App infringes that third party’s intellectual property rights, as between Fogo Media and Apple, Fogo Media, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.
You and Fogo Media acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use as related to your license of the iTunes Store Sourced App, and that, upon your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your license of the iTunes Store Sourced App against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms of Use, you must comply with all applicable third party terms of agreement when using the iTunes Store Sourced App, including, without limitation, any terms and conditions governing your use of a CAS.

User Content

By making available any User Content through the Site and Services, you hereby grant to Fogo Media a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Site and the Services. Fogo Media does not claim any ownership rights in any such User Content and nothing in these Terms of Use will be deemed to restrict any rights that you may have to use and exploit any such User Content.

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Fogo Media the rights in such User Content, as contemplated under these Terms of Use; and (ii) neither the User Content nor your accessing, posting, submission or transmittal of the User Content or Fogo Media’s use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Copyrighted Materials: No Infringing Use

You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. Fogo Media has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users or access to the Site and Services to users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Please see the Fogo Media Copyright Policy www.fogomedia.com/copyright for further information.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at feedback@fogomedia.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Fogo Media and you hereby irrevocably assign to Fogo Media and agree to irrevocably assign to Fogo Media all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Fogo Media’s request and expense, you will execute documents and take such further acts as Fogo Media may reasonably request to assist Fogo Media to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

Interactions between Users

You are solely responsible for your interactions (including any disputes) with other users. You understand that Fogo Media does not in any way screen Fogozine users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services and disclosing personal information to other Fogozine users. You agree to take reasonable precautions in all interactions with other Fogo Media users, particularly if you decide to meet a Fogozine user offline, or in person. Your use of the Site, Services, Fogozine Content and any other content made available through the Site or Services is at your sole risk and discretion and Fogo Media hereby disclaims any and all liability to you or any third party relating thereto. Fogo Media reserves the right to contact Fogozine users, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Use. You will cooperate fully with Fogo Media to investigate any suspected unlawful, fraudulent or improper activity via the Services.

General Prohibitions

You agree not to do any of the following while using the Site, Services or Fogozine Content:

- Access, post, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) constitutes child pornography or child erotica; (vi)promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any other person; or (viii) promotes illegal or harmful activities or substances (including, but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances)

- Use, display, mirror, frame or utilize framing techniques to enclose the Site or Services, or any individual element or materials within the Site or Services, Fogo Media’s name, any Fogo Media trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without Fogo Media’s express written consent;

- Access, tamper with, or use non-public areas of the Site or Services, Fogo Media’s computer systems, or the technical delivery systems of Fogo Media’s providers;

- Attempt to probe, scan, or test the vulnerability of any Fogo Media system or network or breach any security or authentication measures;

- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Fogo Media or any of Fogo Media’s providers or any other third party (including another user) to protect the Site, Services or Fogozine Content;

- Attempt to access or search the Site, Services or Fogozine Content or download Fogozine Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Fogo Media or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);

- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

- Use any meta tags or other hidden text or metadata utilizing a Fogo Media trademark, logo URL or product name without Fogo Media’s express written consent;

- Use the Site, Services or Fogozine Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Use;

- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Fogozine Content to send altered, deceptive or false source- identifying information;

- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Fogozine Content;

- Interfere with, or attempt to interfere with, the access of any user, host or network connected to the Site or Services, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;

- Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;

- Impersonate or misrepresent your affiliation with any person or entity;

- Violate any applicable law or regulation; or

- Encourage or enable any other individual to do any of the foregoing.

Fogo Media will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site and Services security issues, to the fullest extent of the law. Fogo Media may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Use. You acknowledge that Fogo Media has no obligation to monitor your access to or use of the Site, Services or Fogozine Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Fogo Media reserves the right, at any time and without prior notice, to remove or disable access to any Fogozine Content and any User Content, that Fogo Media, in its sole discretion, considers to be in violation of these Terms of Use or otherwise harmful to the Site or Services.

Sweepstakes and Contests

Fogo Media may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Site and Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Site and Service, as they may contain additional important information about Fogo Media rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.

Termination

Without limiting other remedies, Fogo Media may at any time suspend, terminate, or refuse to provide you with access to the Site or Services. In addition, Fogo Media may notify authorities or take any actions it deems appropriate, without notice to you, if Fogo Media suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Use or any policies or rules established by Fogo Media; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Fogozine users, Fogo Media or any other third parties or the Site or Services.

Without limiting any other terms of these Terms of Use, you may stop using the Site and Services at any time.

After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Use will immediately cease. Fogo Media will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON THE SITE OR VIA THE SERVICES WILL NO LONGER BE ACCESSIBLE BY YOU VIA THE SERVICES THEREAFTER.

Any suspension, termination or cancellation will not affect your obligations to Fogo Media under these Terms of Use (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

Disclaimers

THE SITE, SERVICES, FOGOZINE CONTENT, THIRD PARTY MATERIALS AND USER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FOGO MEDIA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FOGO MEDIA MAKES NO WARRANTY THAT THE SITE, SERVICES, FOGOZINE CONTENT, THIRD PARTY MATERIALS OR USER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FOGO MEDIA OR THROUGH THE SITE, SERVICES, FOGOZINE CONTENT OR USER CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Indemnity

You agree to defend, indemnify, and hold Fogo Media, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with User Content, your access to or use of the Site, Services or Fogozine Content, or your violation of these Terms of Use.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES, INCLUDING THE FOGOZINE APPLICATION, AND CONTENT THEREIN REMAINS WITH YOU. NEITHER FOGO MEDIA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR FOGOZINE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL.

SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FOGO MEDIA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT FOGO MEDIA IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

IN NO EVENT WILL FOGO MEDIA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT THEREIN EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FOGO MEDIA AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Fogo Media used herein are trademarks or registered trademarks of Fogo Media. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Controlling Law and Jurisdiction

These Terms of Use and any action related thereto will be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Use will be the state and federal courts located in Newark, NJ, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms of Use constitute the entire and exclusive understanding and agreement between Fogo Media and you regarding the Site, Services and Fogozine Content, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between Fogo Media and you regarding the Site, Services and Fogozine Content.

Assignment

You may not assign or transfer these Terms of Use, by operation of law or otherwise, without Fogo Media’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null and of no effect. Fogo Media may freely assign these Terms of Use. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

You consent to the use of: (i) electronic means to complete these Terms of Use and to deliver any notices or other communications permitted or required hereunder; and (ii) electronic records to store information related to these Terms of Use or your use of the Site or Services. Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Use, will be in writing and given by Fogo Media (x) via email if applicable (in each case to the address that you provide); or by posting to the Site or Services. For notices made by e-mail, the date of transmission will be deemed the date on which such notice is transmitted.

General

The failure of Fogo Media to enforce any right or provision of these Terms of Use will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fogo Media. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Use will remain in full force and effect.

Contacting Us

If you have any questions about these Terms of Use, please contact Fogo Media at info@fogomedia.com.

If you have any questions, complaints or claims with respect to any iTunes Store Sourced App you may contact Fogo Media by emailing privacy@fogomedia.com or calling 732-759-0823, mailing address: 1211 Allenhurst Ave, Ocean, NJ 07712.

Certain Third Party Software

Portions of the Fogo Media Application are subject to the following licenses:

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

* Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

* Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

* Neither the name of the author nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

MGSpligView, by Matt Legend Gemmell.

License Agreement for Source Code provided by Matt Legend Gemmell

This software is supplied to you by Matt Legend Gemmell in consideration of your agreement to the following terms, and your use, installation, modification or redistribution of this software constitutes acceptance of these terms. If you do not agree with these terms, please do not use, install, modify or redistribute this software.

In consideration of your agreement to abide by the following terms, and subject to these terms, Matt Legend Gemmell grants you a personal, non-exclusive license, to use, reproduce, modify and redistribute the software, with or without modifications, in source and/or binary forms; provided that if you redistribute the software in its entirety and without modifications, you must retain this notice and the following text and disclaimers in all such redistributions of the software, and that in all cases attribution of Matt Legend Gemmell as the original author of the source code shall be included in all such resulting software products or distributions.

Neither the name, trademarks, service marks or logos of Matt Legend Gemmell or Instinctive Code may be used to endorse or promote products derived from the software without specific prior written permission from Matt Legend Gemmell. Except as expressly stated in this notice, no other rights or licenses, express or implied, are granted by Matt Legend Gemmell herein, including but not limited to any patent rights that may be infringed by your derivative works or by other works in which the software may be incorporated.

The software is provided by Matt Legend Gemmell on an “AS IS” basis. MATT LEGEND GEMMELL AND INSTINCTIVE CODE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SOFTWARE OR ITS USE AND OPERATION ALONE OR IN COMBINATION WITH YOUR PRODUCTS.

IN NO EVENT SHALL MATT LEGEND GEMMELL OR INSTINCTIVE CODE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) ARISING IN ANY WAY OUT OF THE USE, REPRODUCTION, MODIFICATION AND/OR DISTRIBUTION OF THE SOFTWARE, HOWEVER CAUSED AND WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF MATT LEGEND GEMMELL OR INSTINCTIVE CODE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

* Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

* Neither the name of the All-Seeing Interactive nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

THIS SOFTWARE IS PROVIDED BY All-Seeing Interactive ”AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL All-Seeing Interactive BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

* Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

* Neither the name of Char Software, Inc., Localytics nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

THIS SOFTWARE IS PROVIDED BY CHAR SOFTWARE, INC. D/B/A LOCALYTICS ”AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL CHAR SOFTWARE, INC. D/B/A LOCALYTICS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

THRIFT is licensed under the Apache License, Version 2.0, a copy of which is set forth below (the “Apache License”); you may not use these files except in compliance with the Apache License, a copy of which is set forth below. Unless required by applicable law or agreed to in writing, THIRFT is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the Apache License for the specific language governing permissions and limitations under the Apache License.

Apache License 2.0

Apache License
Version 2.0, January 2004
http://www.apache.org/licenses/

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1. Definitions.

“License” shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document.

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“You” (or “Your”) shall mean an individual or Legal Entity exercising permissions granted by this License.

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“Work” shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below).

“Derivative Works” shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.

“Contribution” shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, “submitted” means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as “Not a Contribution.”

“Contributor” shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work.

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You must give any other recipients of the Work or Derivative Works a copy of this License; and
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You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License.

5. Submission of Contributions. Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions. Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions.

6. Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file.

7. Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License.

8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages.

9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability.

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