End User License Agreement
The Products transacted through the Service are licensed, not sold, to the Customer for use only under the terms of this license, unless a Product is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Customer’s prior acceptance of that separate license agreement. The licensor, Own Group, Inc., (“Application Provider”) with offices at 680 Mission Street, Suite 28E, San Francisco, California, 94105, reserves all rights not expressly granted to You (“Customer”). The Product, Instore, that is subject to this license is referred to in this license as the “Licensed Application.” Own Group, Inc. can be contacted at 855-568-3696 or firstname.lastname@example.org
Parties; Effective Date
This Software Subscription Agreement (“Agreement”) is between Own Group, Inc. (“Application Provider”) and Customer. This Agreement is effective on the date accepted herein. This license granted to the Customer for the Licensed Application by Application Provider is limited to a non-transferable license to use the Licensed Application on any iPad that Customer owns or controls and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the “Usage Rules”). This license does not allow the Customer to use the Licensed Application on any iPad that Customer does not own or control, and Customer may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. Customer may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. Customer may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If Customer breaches this restriction, Customer may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Consent to Use of Data
Customer agrees that Application Provider may collect and use data and related information, including but not limited to technical information about Customer’s device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Customer (if any) related to the Licensed Application. Application Provider may use this information, as long as it is in a form that does not personally identify Customer, to improve its products, to provide services or technologies to Customer, and to aggregate with other customer data for data mining purposes.
Intellectual Property Rights
Application Provider retains all intellectual property rights in the Software, including copyrights, trade secrets, trademarks, patents, and “know-how.” Customer grants Application Provider permission to use the data for any lawful business purposes, provided that the data is used either in the aggregate or in a manner that does not otherwise identify Customer without Customer’s permission. This license is irrevocable, royalty-free, worldwide, and transferable.
Intellectual Property Indemnification.
- Application Provider shall indemnify Customer for all damages awarded by a court of competent jurisdiction (or reached through a negotiated settlement) arising out of Customer’s authorized use of the Software when such claim is based upon a claim of infringement of a U.S. patent, trademark, copyright or trade secret; provided that (i) Customer promptly notifies Application Provider in writing of such claim; (ii) Application Provider has sole control over the investigation, litigation and negotiation of such claim; and (iii) Customer reasonably cooperates, at Application Provider’s expense, in the defense or settlement of such claim. Application Provider shall defend any such third party claim and select counsel to represent Application Provider and Customer.
- If the Software becomes, or in Application Provider’s opinion is likely to become, the subject of such a claim, then Application Provider may, in its sole discretion, either (i) procure (at its expense) for Customer the right to continue using the Software; or (ii) replace or modify the Software. If neither of the foregoing alternatives is reasonably available to Application Provider, then Application Provider may terminate the month-to-month Software license. This states the entire liability of Application Provider with respect to indemnification of Customer for the above referenced claims.
Ownership of Ideas and Inventions; No Conflict of Interest
In the course of their discussions, Customer may provide Application Provider ideas, suggestions, data, and other information (“Ideas”) that may be of use to Application Provider. Customer agrees that Application Provider is free to use, without restriction and without compensation, any Ideas, and hereby assigns to Application Provider all right, title, and interest in and to any intellectual property rights relating to such Ideas. If Customer is an individual currently employed or retained by a third party, Customer represents and warrants that (a) Customer is allowed to consult professionally; (b) Customer shall not work on any Application Provider matter utilizing the resources, intellectual property, or personnel of such third party; and (c) any services provided to Application Provider will not be inconsistent with obligations owed to third parties under any research agreements, grants, policies, or other contracts.
Fees and Payments
Customer agrees to pay a subscription fee for use of the Application Provider software, payable monthly in advance.
Application Provider and Customer may have access to information that the other considers to be confidential and/or a trade secret, such as technology, strategic business plans, financial information, data, and third-party information (“Information”). Each party shall use the Information of the other only for the purposes of this Agreement and not for the benefit of a third party. Customer shall not reverse engineer, disassemble, or decompile the Software. The confidentiality provisions of this Agreement do not apply to information that is entirely in the public domain; was known to either party prior to access to the information under this Agreement; received lawfully from a third party through no breach of any obligation of confidentiality owed to the other party; or is created by that party’s employees independently of the other party’s Information.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LICENSED APPLICATION IS AT CUSTOMER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER. In no event shall Application Provider’s total liability to the Customer for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Term and Termination
The license is effective until terminated by the Customer or Application Provider. The Customer’s rights under this license will terminate automatically without notice from the Application Provider if the Customer fails to comply with any term(s) of this license. Upon termination of the license, Customer shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application. Upon termination, Customer is responsible for ensuring that it has electronic possession of all data generated by it in connection with the use of the System.
Services; Third Party Materials
The Licensed Application may enable access to Application Provider’s and third party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that the Customer accepts additional terms of service.
Customer understands that by using any of the Services, Customer may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, Customer agrees to use the Services at Customer’s sole risk and that the Application Provider shall not have any liability to Customer for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, Customer acknowledges and agrees that the Application Provider is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Application Provider does not warrant or endorse and does not assume and will not have any liability or responsibility to the Customer or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to the Customer. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness or location data displayed by any Services.
Customer agrees that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that Customer will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. Customer agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and Customer shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Customer further agrees not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Application Provider is not in any way responsible for any such use by Customer, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that Customer may receive as a result of using any of the Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the iPhone or iPod touch are not available in all languages or in all countries. The Application Provider makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent Customer chooses to access such Services or Materials, Customer does so at Customer’s own initiative and is responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Application Provider, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the Application Provider be liable for the removal of or disabling of access to any such Services. The Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
Customer may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. 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 Denied Person’s List or Entity List. By using the Licensed Application, customer represents and warrants that customer is not located in any such country or on any such list. Customer also agrees that customer will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Dispute Resolution; Governing Law, Jurisdiction
The parties agree to use their best efforts to resolve any dispute through good faith business negotiations between representatives of each party authorized to resolve the dispute. This Agreement shall be governed by the laws of the State of California and the federal laws of the United States of America. Any action brought by either party related to this Agreement shall be initiated and maintained solely in San Francisco County, California, or in the U.S. District Court of California, Northern Division. The parties expressly submit to the exclusive personal jurisdiction and venue of these courts and waive the application of forum non conveniens. The prevailing party in any such action will be entitled to recover reasonable attorneys’ fees and the costs incurred in connection with such action.
This Agreement constitutes the entire understanding of the parties with respect to the Software. It replaces all prior and contemporaneous written and oral communications, representations and promises. This Agreement may be amended from time to time by Application Provider. All provisions of this Agreement relating to confidentiality, intellectual property ownership, and limitations of liability shall survive the termination of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be deemed modified so as to make it valid in a manner consistent with the intent of the parties expressed in that section.
No Waiver; Notices.
Any waiver of a provision of this Agreement or of a party’s right or remedy under this Agreement must be in writing and signed by the party to be effective. All notices shall be in writing and addressed to the parties at their respective addresses or to such other address as a party may designate. Notices are effective upon receipt. Notice may be given by email, fax, hand delivery, certified mail (return receipt requested), or overnight courier.
It shall not be a material breach of this Agreement, and neither party shall be liable to the other, if prevented from performing its duties or responsibilities under this Agreement by reason of any fire or other casualty, acts of God, earthquake, floods, explosions, interrupted power supply, sabotage, war, riots, acts of terrorism; inability to procure or a general shortage of labor, equipment, facilities, materials or supplies in the open market; strikes, court orders, laws, regulations, or orders of government or military authorities; or any other cause not within the control of such party whose performance is delayed.