Mobile Application End User License Agreement
Last updated: July 16, 2018
This Mobile Application End-User License Agreement (“Agreement”) states the terms and conditions under which You (“You” or “Your” means you and any legal entity that obtained the Software and on whose behalf it is used; for example, and as applicable, your employer) are permitted to download, install, activate, access or otherwise use the software distributed, published, or made available by Intelligent Waves LLC (“Licensor”), which includes computer software and, as applicable, associated media, printed materials and “on-line” or electronic documentation, and any updates or new versions thereof provided to you by Licensor or its resellers or distributors to operate with or in place of such software (the “App”) or services in connection with the operation of the App when and for so long as properly obtained and maintained from Licensor (the “Service”). Carefully read all the terms and conditions of this Agreement before using the App.
BY DOWNLOADING, INSTALLING OR USING THE APP, OR BY CLICKING THE “I AGREE” OR SIMILAR ICON, OR BY INSTALLING OR COPYING THE APP, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BETWEEN LICENSOR AND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE, INSTALL OR COPY THE APP.
The App is proprietary to Licensor and its licensors, and is protected under applicable copyright and trade secret laws. All right, title and interest in and to the App, including all copies thereof, shall remain with Licensor and its licensors. This Agreement does not constitute a sale of the App, but only conveys to You a limited right to use the App in accordance with the terms of this Agreement. Licensor and its licensors own and retain all worldwide rights, title, copyright and other interests, in and to the App including, without limitation, all source code, object code, executable code, libraries and audio, video, text, and graphical representation (screen layout). The App is protected by copyright laws and other international treaty provisions. Therefore, You must treat the App like any other copyrighted material, subject to the provisions of this Agreement.
2.0 License Grant and Termination
When You properly obtain and maintain the Service from Licensor or its authorized distributors, You are granted a limited, revocable, nonexclusive, nontransferable license to use the App in object code (electronic) form only, for Your internal business purposes only, in connection with the Service so obtained, contingent on your compliance with the terms of this Agreement, provided that You have purchased any required license keys from the Licensor required for the Service. As necessary to conduct or support Your internal business operations and in accordance with all other terms of this agreement, Your authorized use of the App and related materials includes the right to store, load, execute and maintain the programs and related materials, in object code only, on one or more partitions of equipment authorized by Apple, Google, or their affiliates.
No proprietary notices in or on the App shall be altered or removed.
You may copy the App for back-up purposes only if (a) you first contact Licensor and Licensor advises you that it does not provide replacement App on demand at reasonable cost in the event of the loss or corruption of the original App, (b) the back-up copy is made and kept by You alone for use only to replace original App that is lost or corrupted and installed and used on Service, and (c) the original copy of the App which the back-up copy replaces is destroyed upon installation of the replacement copy. You may not otherwise copy the App, and in no event may You modify, reconfigure, divide, rent, lease or lend the App.
You may not use or install the App except for use of the Service.
You may not, without Licensor’s prior written consent or as otherwise expressly authorized under this agreement:
- use, copy, modify, reconfigure, divide, sublicense or distribute the App or related materials;
- relicense, sublicense, rent, lease or lend the App or related materials or use the App or related materials for third-party training, hosting, or time sharing, including by making the App available on a network where it is capable of being accessed by more than one device at any time;
- modify remove from the App or related materials any markings or any notice of Licensor or its licensors’ proprietary rights;
- make the App or related materials available in any manner to any third party for use in the third party’s business operations;
- cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the App (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the App);
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App;
use the App in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments without the express written authorization of the Licensor;
- disclose results of any program benchmark tests; or
- re-host or use the programs or related materials on equipment, operating systems or a platform other than the approved equipment.
All rights in the programs and related materials not expressly granted in this agreement are reserved or retained by Licensor. No right or license exists, is granted or conferred or may arise by implication or estoppel.
Your right to use the App shall terminate, and Licensor may at its option suspend or deactivate Your use of the App, upon Your failure to comply with any term or condition of this Agreement, any unlawful use of the App or Service, or any abusive conduct involving the App or Service that is outside the normal contemplated use thereof. Upon termination of the licenses granted herein, You must cease all use of the App and destroy all copies (physical or electronic) of the App (including all component parts and copies thereof), and certify to Licensor, if so requested by Licensor, that all App have been so destroyed.
All terms of Sections 5.0 and 6.0 shall survive termination of the licenses granted herein.
3.0 Activation and Use Terms
Remote Access. When named and authorized to use the Service, You may access and to use this App when installed on your Device. You may also allow other users to access the App to provide You with support services. The App may not be accessed or used by other persons or for other purposes under the same license at the same time.
Trial and Conversion. Versions of the App in some cases may be licensed on a trial basis. Your rights to use trial versions of the App software are limited to the trial period. In such a case, the trial version and the duration of the trial period will be indicated during the activation process. You may have the option to convert your trial rights to a full license by following the instructions given to You. It is Your responsibility to adhere to the limitations on use of trial versions of the App.
Mandatory Activation. Activation associates the use of the App with the Service and the devices designated for the Service. During activation, the App may send information about the App and your device to Licensor or its designees. This information may include the version or model of your device, the license version and the product ID of the App, Internet protocol address of the device and information derived from the hardware configuration, including unique identifiers of the hardware, firmware, or operating system. BY USING THE APP, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION AND TO THE USE OF THAT INFORMATION BY LICENSOR OR ITS DESIGNEES FOR PURPOSES OF THIS AGREEMENT.
Validation. The App may from time to time be subject to validation procedures employed by Licensor or its designees. Validation verifies that the App has been activated and is properly licensed. Validation in some cases also may permit You to use certain features of the App or to obtain additional benefits. During a validation check, the App will send information about the software to Licensor or its designees. This information may include the version of the App in use and the product key. BY USING THE APP, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION AND TO THE USE OF THAT INFORMATION BY LICENSOR OR ITS DESIGNEES FOR PURPOSES OF THIS AGREEMENT. If the App fails the validation for any reason, the functionality of the software may be affected. For example, You may then need to reactivate the software to continue use.
Consent for Internet-Based Services. Licensor provides Internet-based services with the software. Additional software features of Licensor or other service providers may be provided via the Internet. In some cases, you will not receive a separate notice when they connect. You may switch off these features or not use them if You so choose. For more information about these features, contact technical support. BY USING THESE FEATURES, YOU CONSENT TO THE TRANSMISSION OF SALES, PAYMENT PROCESSING, COMPANY, EMPLOYEE AND CUSTOMER INFORMATION AND TO THE USE OF THAT INFORMATION BY LICENSOR OR ITS DESIGNEES FOR PURPOSES OF THIS AGREEMENT.
Computer Information. Certain features associated with the App or the Service use Internet protocols that send to the appropriate systems computer information, such as Your Internet protocol address, the type of operating system, browser and name and version of the software you are using, and the language code of the device where you installed the software, and most importantly, data. Licensor or its designees use this information to make the Internet-based services available to you. The information collected may include swipe (data uploads, data and software downloads, payment processing, validation, etc.), remote data access, customer feedback system.
Device Integrity. The device’s operating system must not be compromised (for example: hacked, jail-broken, or otherwise tampered with). Licensor assumes no liability whatsoever from compromised or unlicensed devices running any App.
Geographic Restrictions. The App and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the App or Services from outside the United States, you are responsible for compliance with local laws.
Updates. Licensor may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when your device is connected to the internet either:
- the App will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
4.0 Third Party Materials
The App may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Licensor is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Licensor does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
5.0 Limited Warranty and Disclaimer
THE APP LICENSED HEREIN IS LICENSED “AS IS” AND NEITHER LICENSOR NOR ITS REPRESENTATIVES OR DISTRIBUTORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APP, ITS USE, OR THE RESULTS OF SUCH USE. ALL WARRANTIES AND CONDITIONS OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
Without limiting the foregoing, Licensor does not warrant or represent that the operation of the App will be uninterrupted or error-free, or that any defect within the App will be corrected. Furthermore, Licensor does not warrant or make any representation regarding the results of Your use of the App in terms of capability, correctness, accuracy, reliability or otherwise, or that the App will meet Your requirements, or that the App is secure. No presentation, specimen, oral or written information or advice given by Licensor or any representative of Licensor shall create a warranty.
ANY LIABILITY OF LICENSOR OR ITS AFFILIATES FOR DEFECTS IN THE APP WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE APP WITH ANOTHER COPY OF THE APP, IF AVAILABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Maintaining Operating System: Licensor cannot be responsible for the performance or maintenance of the computer or mobile-device’s 0perating systems (Windows 2000/XP/Vista or Linux, Mac OS, iPhone OS, Android or other) that you employ. This includes bugs, viruses, spyware and other malware. Your operating system requires occasional security patches, updates, and service packs. You need to ensure that whenever possible it is set to update automatically and that it is receiving and installing updates and other maintenance releases. We also recommend that you install antivirus software where possible.
Third party software and hardware: Licensor cannot be responsible for other software installed on the system by the end user. Common examples include applications (apps); email, office, publishing and accounting software, antivirus software, etc. We also cannot be responsible for any hardware, whether it was purchased from us or not. The reliability, security, and warranty of hardware is between you and the hardware manufacturer. Providing support to hardware or software not created by us puts us in a position of being responsible if it fails. We cannot accept this responsibility.
As the user of the App, You are solely responsible for the selection of the App to achieve Your intended results, for the installation and use made of the App, and for the results obtained from the App. In addition, You are solely responsible for selection and installation of appropriate equipment, including the Service. You agree to follow the instructions contained in the App or materials provided from time to time in connection with the App, for installation and use of the App.
IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR LICENSORS (THE “LICENSOR PARTIES”) BE LIABLE WHETHER IN CONTRACT OR IN TORT, FOR ANY LOSSES, INJURIES OR DAMAGES OF ANY KIND, TO ANY PERSON OR ENTITY (INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, MULTIPLE, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER) ARISING OUT OF OR RELATING TO ANY USE, INABILITY TO USE, CONDITION, PERFORMANCE, DEFECT OR FAILURE IN, OR IMPROPER USE OF, THE APP OR THE RESULTS OF THE APP (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, OR DAMAGES FOR LOST OR CORRUPTED DATA), EVEN IF THE LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to You. The limitations provided in this Agreement are intended to apply to the fullest extent allowable under applicable law.
You release and waive all claims against the Licensor Parties, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Your use of the App. If You are a California resident, You waive any rights You may have under § 1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You agree to release unknown claims and waive all available rights under California Civil Code § 1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Licensor Parties.
You acknowledge that the App may be subject to restrictions and controls imposed by the United States Export Administration Act (the “Act”) and the regulations thereunder. You agree and certify that neither the App nor any direct product thereof is being or will be acquired, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the Act and the regulations thereunder or will be used for any purposes prohibited by the same.
8.0 Government Users
The App is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by or on behalf of the United States of America, its agencies and/or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer App clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer for such purposes is Licensor, 1801 Robert Fulton Dr., Suite 440, Reston, VA 20191.
The App and related documentation are “Commercial Items,” as the term is defined at 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.
Upon the request of Licensor or its designee, You agree to provide to Licensor promptly upon Licensor’s request a certificate that provides such information as Licensor may request regarding Your installation and use of the App and related materials in order to allow Licensor to verify compliance with this Agreement.
You agree to create, retain and provide to Licensor and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Your use of the App and related materials is and has been in compliance with this Agreement, including, without limitation, all of Licensor’s applicable licensing and pricing terms, and compliance with Licensor’s intellectual property rights. You agree to run scripts and tools requested by Licensor and to report the results thereof to Licensor as part of such verification.
Upon reasonable notice, Licensor or its designee shall be entitled to verify Your compliance with the terms of this Agreement for all environments in which You or anyone acting on Your behalf uses or installs the App or related materials. Each party shall be responsible for its own costs and expenses incurred in connection with the verification. In such verification, You will give Licensor access to the personnel, resources and facilities of You, Your affiliates and Your contractors, including the right to inspect all copies of the App and related materials in Your or their possession or use. Licensor or its designee may use an independent auditor to assist with such verification, provided Licensor has a written confidentiality agreement in place with such auditor.
Licensor will notify you in writing if any such verification indicates that You, Your affiliates, or Your contractors have used any App or related materials in excess of its authorized use or are otherwise not in compliance with this agreement. You agree to promptly pay Licensor any charges that Licensor specifies in an invoice for: (a) any such excess use, and (b) any additional charges and other liabilities determined as a result of such verification.
This Agreement shall be construed in accordance with the laws of the Commonwealth of Virginia
You agree that the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement shall be filed only in the state or federal courts located in Virginia, and You further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
This Agreement may not be altered or amended except by a written document signed by an authorized officer of Licensor.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties and the remainder of this Agreement shall remain in full force and effect.
This Agreement constitutes the entire agreement between You and Licensor with respect to App and supersedes any prior or contemporaneous understandings, representations, statements or agreements, written or oral, regarding the App.
Licensor may modify the App at any time for any reason.
The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.