June 30, 2016 mkrienke

License – Development/Test App

Development Application End User License Agreement

An End User License Agreement (EULA) is a legal contract between a software company and the user of their app. This End User License Agreement (“Agreement“) is a binding agreement between Mobile tAPPestry, LLC (“Company“) and you (“End User” or “you“). This Agreement governs your use of the Mobile tAPPestry Development App (including all related documentation, the “Application“). The Application is licensed, not sold, to you.

BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/ INSTALL/USE THE APPLICATION OR THE PRODUCTION APPLICATION AND DELETE THEM FROM YOUR MOBILE DEVICE(S) AND COMPUTER(S).

  1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive and nontransferable license to:
    • download, install and use the Application for the purpose of developing the content and functionality of a mobile application (“Production Application”) for public or private release by customizing, debugging and testing up to two (2) unique URLs within the Application.
  2. License Restrictions. Except as permitted by this Agreement, Licensee shall not:
    • (a) copy or distribute the Application or the Production Application;
    • (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or the Production Application;
    • (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or the Production Application or any part thereof;
    • (d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application or the Production Application, including any copy thereof;
    • (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or Production Application or any features or functionality of the Application or Production Application, to any third party for any reason, including by making the Application or Production Application available on a network where it is capable of being accessed by more than one device at any time;
    • (f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application or the Production Application;
    • (g) use the Application or the Production Application in a manner or for any purpose that infringes, misappropriates or otherwise violates any Law or Intellectual Property Right; or
    • (h) use the Application or the Production Application for purposes of competitive analysis of the Application or the Production Application, the development of a competing software product or service or any other purpose that is to Company’s commercial disadvantage.
  3. Reservation of Rights. You acknowledge and agree that the Application and the Production Application are provided under license, and not sold, to you. You do not acquire any ownership interest in the Application or the Production Application under this Agreement, or any other rights thereto other than to use the Application and Production Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company reserves and shall retain its entire right, title and interest in and to the Application and the Production Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. You also acknowledge that the Application and Production Application are not “works made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. § 101), and such copyrights are therefore owned by Company.
  4. Collection and Use of Your Information. You acknowledge that when you download, install or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  5. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and 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 Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

You shall promptly download and install all Updates and acknowledge and agree that the Application 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 Application and be subject to all terms and conditions of this Agreement.

  1. Third Party Materials. Your use of the Application is subject to the terms and conditions of the Apache License Version 2.0. All third-party software packages are copyright by their respective authors. Apache License Version 2.0 terms and conditions are hereby incorporated into the Agreement by this reference. http://www.apache.org/licenses/LICENSE-2.0.html. See the aforementioned License for the specific language governing permissions and limitations under the License.
  2. License Fees and Charges. Prior to installing, downloading, or using the Application, you shall pay a one-time non-refundable license fee. See the Mobile tAPPestry website for current fees.
  3. Term and Termination.
    • (a) Unless otherwise terminated or cancelled as provided by this Agreement, this term shall commence on the date you first use the Application and shall continue in perpetuity until terminated by you or Company as set forth in this Section 8.
    • (b) You may terminate this Agreement by deleting the Application and the Production Application and all copies thereof from your Mobile Device.
    • (c) Without prejudice to any other rights, Company may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement or if you fail to pay the license fees, if such failure is not cured within 30 days following written notice by Company; provided, however, that in the event that the Company materially breaches any of the restrictions set forth in Section 2, Company shall have the right to terminate this Agreement immediately. Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
    • (d) Upon termination:
      • (i) all rights granted to you under this Agreement will also terminate; and
      • (ii) you must cease all use of the Application and the Production Application and delete all copies of the Application and Production Application from your Mobile Device(s), Computer(s) and account.
    • (e) Termination will not limit any of Company’s rights or remedies at law or in equity.
  4. Disclaimer of Warranties. THE APPLICATION AND PRODUCTION APPLICATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION AND PRODUCTION APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION OR PRODUCTION APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

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.

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR PRODUCTION APPLICATION FOR:
    • (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
    • (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OR THE PRODUCTION APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  1. Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or the Production Application or your breach of this Agreement. Furthermore, you agree that Mobile tAPPestry, LLC assumes no responsibility for the content you submit or make available through this Application or the Production Application.
  2. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
  3. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
  4. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
  5. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application or Production Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Oklahoma. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
  6. Entire Agreement. This Agreement constitutes the entire agreement between Licensee and Licensor relating to the Licensed Products and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties.
  7. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.