NOTICE TO USER: THIS IS A CONTRACT. BY INDICATING YOUR ACCEPTANCE BELOW, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, AS DEFINED BELOW, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT UNLESS YOU HAVE A DIFFERENT WRITTEN LICENSE AGREEMENT WITH APPALLICIOUS, LLC. (“APP”).
The following contract sets forth the End User License Agreement (this “Agreement”) of App for the use of the Software, as defined below. You must read this Agreement carefully before indicating your acceptance at the end of the text of this Agreement. If you do not agree with the terms and conditions of this Agreement, decline where instructed, and you will not be able to use the Software.
Software: “Software” means the mobile application software marketed and sold by App. Documentation: “Documentation” means any printed matter delivered to you by App which comprises: (i) unpublished documents containing confidential information about the Software not generally available to the public; and (ii) published documents regarding the Software that contain App’s or its licensor’s copyrighted materials, including, without limitation, a user’s manual.
2. Terms of License; Grant and Rights
Subject to the terms of this Agreement, App hereby grants to you a worldwide, nonexclusive, nontransferable, perpetual and irrevocable (except as provided in Section 5 hereof), license to use the Software: (a) to install executable copies of the Software, delivered by App on smartphones and execute said copies solely for your own internal purposes and (b) to make copies of the Documentation as may be reasonably required for your use of the Software, and to use the Documentation in connection with the operation and use of the Software. You will not use the Software or the Documentation i) for the benefit of any third party, ii) to create any type of service business, or iii) to create data which is then licensed or resold to a third party without the express consent of App. Any use of the Software or the Documentation by you beyond the scope of this license will be a material breach of this Agreement
3. Term and Termination.
This Agreement and the license granted hereunder shall continue in force in perpetuity unless terminated by App or you in accordance with this paragraph. If, at any time during the term of this agreement, you breach any of your obligations hereunder and such breach either cannot be cured or is not cured within 15 days of notice from Licensor, then App may immediately terminate this Agreement and the license granted hereunder. You may terminate this Agreement by providing written notice of termination to App. Upon termination of this Agreement for any reason whatsoever,
you shall immediately (a) cease all use of the Software and remove it from all servers under your control; and (b) return to App (or, at App’s discretion, destroy) all copies of the Software then in your possession.
4. Intellectual Property Rights and Proprietary Information.
4.1 Intellectual Property Rights.
The Software is protected by trade secret laws, national copyright laws, international treaty provisions and all other applicable laws. You may not copy the product manual or written materials accompanying the Software (except as provided in Section 2(b)).
4.2 Patent Infringement.
App shall not be liable to indemnify you against any loss you sustain as the result of any claim made or action brought by any third party for infringement of any patent, by reason of your use of the Software. App shall not be required to take legal action against a third party with respect to any infringement of patent(s) related to the Software which App may now or at any time in the future own. If, however, App elects to take such action, you agree to cooperate reasonably with App in such action in order to protect its rights. App shall bear all reasonable costs and expenses you incur in cooperating with App under this provision.
4.3 Proprietary Information.
You acknowledge that the Software and the Documentation contain certain confidential and trade secret information of App (the ”Proprietary Information”). You agree, with respect to the Proprietary Information, not to (1) disclose it to any third party; or (2) use it for any purpose except as authorized by this Agreement. You also agree not to reverse engineer, decompile, disassemble or otherwise
attempt to discern any component or software contained in the Software or the Documentation. Any information related to the Software, the Documentation and/or their improvement that you learn, develop or discover during this Agreement, shall be considered Proprietary Information and shall therefore be the exclusive property of App. You will immediately disclose to App any information related to the Documentation or the Software that you learn, develop or discover during this Agreement.
Neither party (the “Receiving Party”) shall be under any obligation to the other party (the “Disclosing Party”) with respect to any information: (a) which is, at the time of disclosure, public information generally known on a nonconfidential basis; or (b) which after disclosure becomes public information generally known on a non-confidential basis through no fault of the Receiving Party, but the
obligation of the Receiving Party shall cease only after the date on which such information has become available to the public; or (c) which the Receiving Party can demonstrate through tangible evidence was developed independently by the Receiving Party without reference to or reliance upon the Disclosing Party’s confidential information.
5. Warranty Disclaimer, Limitation of Liability and Indemnification.
5.1 Warranty Disclaimer
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE LICENSED HEREUNDER AND THE SUPPORT SERVICES PROVIDED HEREUNDER ARE PROVIDED TO YOU ON AN “AS IS”
BASIS, AND APP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, THE SUPPORT SERVICES RELATED TO THE SOFTWARE, THE DOCUMENTATION, OR THE DATA THAT ARE GENERATED BY THE DOCUMENTATION OR THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR FROM STATUTE.
5.2 Limitation of Liability
IN NO EVENT SHALL APP BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY)), OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF APP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APP’S TOTAL LIABILITY FOR DAMAGES HEREUNDER SHALL NOT IN ANY EVENT EXCEED $500.
You agree to indemnify and hold App harmless against any and all loss, damages, actions, costs, claims, demands and other liabilities of any kind whatsoever (including the payment of reasonable attorneys’ fees), it may incur that arise directly or indirectly from your use of the Software.
6. General Terms
Neither party shall assign any rights or delegate the performance of any duties under this Agreement without the other party’s prior written consent, except that App may assign its rights and elegate the performance of its duties hereunder to any related party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
6.2 Force Majeure
Neither party will be deemed in default of this Agreement to the extent that performance of such party’s obligations (other than payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party, provided that such Party gives the other party prompt written notice thereof, and uses its best efforts to cure the delay.
6.3 Governing Law and Venue
This Agreement will be governed by and construed in accordance with the laws of the State of California (excluding its conflicts of law rules).
ANY DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT WILL BE SETTLED BY BINDING ARBITRATION UNDER THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH ARBITRATION WILL TAKE PLACE IN SAN FRANCISCO, CALIFORNIA. YOU CONSENT TO SUCH JURISDICTION.
6.4 Injunctive Relief
It is expressly agreed that your breach of this Agreement will cause irreparable harm to App and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, App will be entitled to an injunction or award of specific performance or other equitable remedies in all legal proceedings in the event of any threatened or actual violation by you of any or all of the
provisions of this Agreement.
6.5 Export Control
You agree to comply with all export control rules and regulations of the U.S. government. You shall not transfer the Software outside the country in violation of U.S. Department of Commerce and export administration regulations.
6.6 No Joint Venture
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship of the parties shall at all times be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either party except those expressly granted herein.
Except as specifically provided above, all notices, consents or other communications provided for under this Agreement will be in writing and will be deemed given if delivered by overnight courier (effective on the date of delivery), or by fax (effective on the business day after the date sent), or by email (effective on the date sent), or by mail (effective on the date of receipt). Until notice of change of address has been given in the manner provided in this paragraph, notices will be sent to the notice address at the end of this Agreement.
6.8 Modification and Waiver
This Agreement may not be modified or amended except by a writing, which is signed by authorized representatives of each of the parties. Either party’s failure to exercise any right shall not operate as a waiver unless so stated in a writing signed by the waiving party. Notwithstanding the foregoing, the waiver by either party of any breach, or the failure to exercise any right will not prevent a
subsequent exercise of such right, or be deemed a waiver of any subsequent breach of the same or any other term of the Agreement.
6.9 Entire Agreement
This Agreement and its Exhibits constitute the sole and entire agreement of the Parties with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written promises or agreements. There are no promises, covenants or undertakings other than those expressed in this Agreement. This Agreement supersedes any conflicting terms in any purchase order or acknowledgment.
Sections 3, 4, 5 and 6 hereof shall survive the expiration or termination of this Agreement for so long as necessary to accomplish their purpose.