End User License Agreement
THIS END USER LICENSE AGREEMENT (“License Agreement”) IS A LEGAL AGREEMENT. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS SOFTWARE MOBILE APPLICATION (the “Mobile App”), THE USE OF WHICH IS LICENSED BY Metrotech Corporation, d/b/a Vivax-Metrotech Corporation (“Company”) TO ITS CUSTOMERS AS SET FORTH IN THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” AND DO NOT USE THE MOBILE APP. YOUR CLICKING “I AGREE” OR USING THE MOBILE APP INDICATES THAT YOU ACCEPT THESE TERMS.
LICENSE: Subject to the terms and restrictions set forth in this License Agreement, Company grants you a limited, non-exclusive license to use the Mobile App, only in object code form, solely as embedded on the smartphone device which you own or control and only for and in connection with your own internal business use (or, in the case of individual consumers, your personal, non-commercial use) and only in conjunction with Company’s utility locator tools (“Products”). You are not permitted to lease or rent, distribute or sublicense the Mobile App or to use the Mobile App in a time-sharing arrangement or in any other unauthorized manner. Further, no license is granted to you in the human readable code of the Mobile App (source code). The Mobile App is licensed to be used only on or with one mobile device and only in conjunction with the Product to which it pertains. The Mobile App and accompanying documentation (if any) may be copied only as essential for backup or archive purposes in support of your use of the Mobile App as permitted hereunder. You must reproduce and include all copyright notices and any other proprietary rights notices Mobile Appearing on the Mobile App on any copies that you make.
THIRD PARTY MOBILE APP TERMS: The Mobile App is provided subject to the additional third party Mobile App terms on Exhibit A.
OPEN SOURCE SOFTWARE: This License Agreement does not Mobile Apply to any open source software which is included in or provided with the Mobile App or to any third party software that is licensed separately under the terms of various separate license agreements (“Other Software”). The Other Software is instead licensed to you under the terms of the Mobile Applicable third party license agreements (the “Other Software Terms”). Copyrights to the Other Software are held by copyright holders indicated in the Other Software Terms. To the extent required by the Other Software Terms, Company will make such open source software available by written request to Company at the e-mail or mailing address listed below. Any terms of this License Agreement that conflict with the terms of any license agreements for Other Software will not Mobile Apply to the Other Software.
NO ASSIGNMENT; NO REVERSE ENGINEERING: Modification, reverse engineering, reverse compiling, or disassembly of the Mobile App is expressly prohibited. If, however, you are a European Union (“EU”) resident, information necessary to achieve interoperability of the Mobile App with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available to you from Company upon written request.
EXPORT RESTRICTIONS: The Mobile App and Product are subject to U.S. export control laws and may be subject to export or import regulations in other counties. You agree not to export or re-export the Mobile App or accompanying documentation (or any copies thereof) or any products utilizing the Mobile App or such documentation in violation of any Mobile Applicable laws or regulations of the United States or the country in which you obtained them. The Mobile App covered by this License Agreement may contain strong data encryption code which cannot be exported outside of the U.S. or Canada. You agree that you will not export/re-export, either physically or electronically, the encryption Mobile App or accompanying documentation without obtaining written authorization from the U.S. Department of Commerce. You hereby agree to indemnify and hold Company harmless from all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorneys’ fees) arising out of or resulting from your breach of this paragraph.
TITLE; TRADE SECRETS: You acknowledge and agree that ownership of, and title to, the Mobile App and all subsequent copies thereof regardless of the form or media are held by Company and its licensors. You further acknowledge and agree that the Mobile App contains the valuable trade secrets of Company and its licensors. You agree to hold such trade secrets in confidence.
NO IMPLIED RIGHTS: All rights not expressly granted by Company to you in this License Agreement are hereby reserved by Company. There are no implied rights.
UNITED STATES GOVERNMENT LEGEND: The Mobile App is commercial in nature and developed solely at private expense. The Mobile App is delivered as “Commercial Computer Mobile App” as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in this License Agreement, which is Company’s standard commercial license for the Mobile App. Technical data is provided with limited rights only as provided in DFAR 252.227-7015 (Nov. 1995) or FAR 52.227-14 (June 1987), whichever is Mobile Applicable.
TERM AND TERMINATION: This License Agreement is effective until terminated. You may terminate it at any time upon notice to Company. It will also terminate immediately if you fail to comply with any term or condition of this License Agreement. Upon such termination, the licenses granted by this License Agreement will terminate and you agree to stop all use of the Mobile App and documentation. The provisions that by their nature continue and survive will survive any termination of this License Agreement.
GOVERNING LAW: The laws of the State of California and the United States govern all matters arising out of this License Agreement, excluding their conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from Mobile App to this License Agreement.
NO ASSIGNMENT: You may not assign or transfer your rights under this License Agreement. Any purported assignment or transfer in violation of this paragraph is void.
LIMITED WARRANTY: The limited warranty for the Product is as set forth in the Product’s user manual accompanying the Product. No warranty is provided for the Mobile App.
WARRANTY DISCLAIMER: NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY MOBILE APPLICABLE LAW, COMPANY PROVIDES THE MOBILE APP “AS-IS” AND DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. COMPANY DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE MOBILE APP. COMPANY MAKES NO WARRANTY THAT THE MOBILE APP WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
PRODUCT LIMITATIONS: You acknowledge that the Product and the Mobile App are designed and intended only for personal, informational purposes only, and not intended for emergency responders or use in nuclear power, commercial, airport, security, industrial, military or medical settings or Mobile Apps or any life safety, critical purpose, or other Mobile App or situation where the use or failure of the products or services may lead to death, bodily injury, damage to person or property or environmental damage. YOUR USE OF THE MOBILE APP AND THE PRODUCT IS AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR (AND COMPANY DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE MOBILE APP OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY DEATH OR BODILY INJURY, OR ACTUAL OR POTENTIAL LOSS, LIABILITY OR DAMAGES TO ANY PERSONAL OR REAL PROPERTY, EQUIPMENT, OR DATA. All life threatening and emergency events should be directed to 911 or the appropriate emergency response services. The Product and the Mobile App are merely detection tools. Company makes no guaranty or warranty that the Product or Mobile App will detect all utilities.
LIMITATION OF LIABILITY: TO THE FULL EXTENT ALLOWED BY LAW, COMPANY DISCLAIMS AND EXCLUDES FOR ITSELF AND ITS SUPPLIERS ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE MOBILE APP OR PRODUCT, EVEN IF COMPANY OR ITS AUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND LIMITS ITS LIABILITY TO REPLACEMENT, REPAIR, OR REFUND OF THE PURCHASE PRICE PAID, AT COMPANY’S OPTION. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE.
DISCLAIMER: Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their Mobile App to you. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the Mobile Applicable written warranty. Your specific legal rights may vary depending on local law.
SEVERABILITY: In the event any provision of this License Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefor.
NOTICES: Company may send notice to you via email or to a mailing address. Notices will be sent to the address that you registered with Company.
WAIVERS: All waivers by Company will be effective only if in writing. Any waiver or failure by Company to enforce any provision of this License Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
CAPTIONS: The captions and paragraph headings of this License Agreement are for convenience and are not to be used in interpreting this License Agreement.
ENTIRE AGREEMENT: This License Agreement sets forth the entire understanding and agreement between you and Company, supersedes all prior agreements, whether written or oral, with respect to the Mobile App, and may be amended only in a writing signed by both parties that identifies itself as an amendment to this License Agreement.
Questions or Additional Information: If you have questions regarding this License Agreement, please contact Company by sending an email to [email protected].
Rev. 2/2018
EXHIBIT A
ADDITONAL MOBILE APP TERMS
1. The following additional terms and conditions apply with respect to any Mobile App designed for use on an Mobile Apple iOS-powered mobile device (an “iOS Mobile App”):
(a) You acknowledge that this Agreement is between You and Company only, and not with Mobile Apple, Inc. (“Mobile Apple”).
(b) Your use of the iOS Mobile App must comply with Mobile Apple’s then-current Mobile App Store Terms of Service.
(c) Company, and not Mobile Apple, is solely responsible for the iOS Mobile App and the services and content available thereon. You acknowledge that Mobile Apple has no obligation to provide maintenance and support services with respect to the iOS Mobile App. To the maximum extent permitted by Mobile Applicable law, Mobile Apple will have no warranty obligation whatsoever with respect to the iOS Mobile App.
(d) You agree that Company, and not Mobile Apple, is responsible for addressing any claims by You or any third-party relating to the iOS Mobile App or Your possession and/or use of the iOS Mobile App, including, but not limited to:
(i) product liability claims
(ii) any claim that the iOS Mobile App fails to conform to any Mobile Applicable legal or regulatory requirement
(iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law Mobile Applicable to Company as provider of the iOS Mobile App
(e) You agree that Company, and not Mobile Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS Mobile App or Your possession and use of the iOS Mobile App.
(f) You represent and warrant that:
(i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country
(ii) You are not listed on any U.S. Government list of prohibited or restricted parties
(g) You agree to comply with all Mobile Applicable third-party terms of agreement when using the iOS Mobile App (e.g., You must not be in violation of Your wireless data service terms of agreement when using the iOS Mobile App).
(h) The parties agree that Mobile Apple and Mobile Apple’s subsidiaries are third-party beneficiaries to this Agreement as they relate to Your license of the iOS Mobile App. Upon Your acceptance of this Agreement, Mobile Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as they relate to Your license of the iOS Mobile App as a third-party beneficiary thereof.
2. The following additional terms and conditions apply with respect to any Mobile App designed for use on an Android-powered mobile device (an “Android Mobile App”):
(a) You acknowledge that this Agreement is between You and Company only, and not with Google, Inc. (“Google”).
(b) Your use of Android Mobile App must comply with Google’s then-current Android Market Terms of Service.
(c) Google is only a provider of the Android Market where You obtained the Android Mobile App. Company, and not Google, is solely responsible for Android Mobile App and the IoT Services and content available thereon. Google has no obligation or liability to You with respect to Android Mobile App or this Agreement.
(d) You acknowledge and agree that Google is a third-party beneficiary to the Agreement as they relate to Android Mobile App.
3. Geo-Location Terms
The Mobile App include and make use of certain functionality and services provided by third-parties that allow Company to include maps, geocoding, places and other content from Google, Inc. (“Google”), or third-party vendors like Google, as part of the Pilot Services (the “Geo-Location Services”). Your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use.