CAREFULLY READ THE FOLLOWING SERVICE AND LICENSE AGREEMENT. YOU ACCEPT AND AGREE TO BE BOUND BY THIS LICENSE AGREEMENT BY USING ANY SOFTWARE OR SERVICES CREATED OR PROVIDED BY mobileXware. IF YOU DO NOT AGREE TO THIS LICENSE, YOU MUST UNINSTALL THE mobileXware SOFTWARE AND CEASE AND DECIST THE USE OF ALL mobileXware SERVICES, INCLUDING: THE WORLD WIDE WEB SITE SERVICES AND THE FUNCTIONS, FACILITIES, AND SERVICES RELATED THERETO, OFFERED BY mobileXware ("Services") AND THE OBJECT CODE OF THE SOFTWARE, WHICH INCLUDES, ANY UPDATES, UPGRADES, REVISIONS OR NEW RELEASES OF THE SOFTWARE - AND ANY ASSOCIATED MEDIA, SAMPLE CODE, MATERIALS OR DOCUMENTATION, IN PHYSICAL OR ELECTRONIC FORM ("Software").
"You" means the person or company who is being licensed to use the Software or Services. "We," "us" and "our" means mobileXware, LLC.
We hereby grant you free use of our Services under the terms of this Agreement.
We hereby grant you free, limited use of the software under the terms of this Agreement for a limited period of no longer than 30 days. Upon purchase of a valid License Key Code, the limited use and limited time period will be waived while maintaining all other terms and conditions of the Agreement herein.
Upon payment of the appropriate license key code fee, subject to the terms and conditions of this Agreement, we grant to you a non-exclusive, non-transferable license to install, execute, and use one copy of the Software on any single computing device–for example, computers, handheld devices, mobiles, cellular phones, PDAs and music players–, provided the Software is in use on only one computer at any time. The Software is "in use" on a computer when it is loaded into temporary memory (RAM) or installed into the permanent memory of a computer—for example, flash memory, a hard disk, CD-ROM or other storage device.
If the Software is permanently installed on the hard disk or other storage device of a computing device (other than a network server) and one person uses that computer more than 80% of the time, then that person may also use the Software on a portable or home computer.
We strongly recommend that you consult your physician or qualified health care professional before undertaking any fitness, exercise, or diet program. Before using any exercise equipment or apparatus make sure you fully understand its proper use and have received instruction on its use by a qualified fitness professional. Our information is not intended to take the place of the advice of your physician, health care provider, or fitness professional. We disclaim any liability in connection with the advice associated with our services or any other products or services advertised therein. Reliance on any information provided by us is done entirely at your own risk.
We remain the owner of all right, title and interest in the Software and related Services materials.
You may copy the Software for back up and archival purposes, provided that the original and each copy is kept in your possession and that your installation and use of the Software does not exceed that allowed in the "License Grant" section above.
The Software and Services are protected by United States copyright laws and international treaties. You must treat the Software and Services like any other copyrighted material—for example, a book. You may not:
copy the Services,
copy the Software except to make archival or backup copies as provided above,
modify or adapt the Software or merge it into another program,
reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software,
place the Software onto a server so that it is accessible via a public network such as the Internet, or
sublicense, rent, lease or lend any portion of the Software or Services.
You may transfer all your rights to use the Software and Services to another person or legal entity provided you transfer this Agreement, the Software and Services, including all copies, updates and prior versions to such person or entity and that you retain no copies, including copies stored on computer.
We warrant that for a period of 90 days after delivery of this copy of the Software to you:
the media on which this copy of the Software is provided to you will be free from defects in materials and workmanship under normal use, and
the Software will perform in substantial accordance with the Documentation.
To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, regardless of whether we know or had reason to know of your particular needs. No employee, agent, dealer or distributor of ours is authorized to modify this limited warranty, nor to make any additional warranties.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Our entire liability and your exclusive remedy for breach of the foregoing warranty shall be, at our option, to either:
return the price you paid, or
repair or replace the Software or media that does not meet the foregoing warranty if it is returned to us with a copy of your receipt.
IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE (EVEN IF WE OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This license agreement takes effect upon your use of the software and remains effective until terminated. You may terminate it at any time by destroying all copies of the Software and discontinuing use of the Services. It will also automatically terminate if you fail to comply with any term or condition of this license agreement. You agree on termination of this license to destroy all copies of the Software and to discontinue use of the Services.
As a registered member and depending on which particular Service you use or register for, you may receive or establish one or more passwords and accounts. Maintaining the confidentiality and security of your passwords and accounts is solely your responsibility. Do not divulge your password to anyone else or use anyone else's password or account. You are entirely responsible for all activities that occur on or through your account(s), and you agree to notify us immediately about any unauthorized use of accounts or any breach of security. You agree that we shall not be responsible for any losses incurred in connection with any misuse of passwords and you further agree that we shall have no responsibility whatsoever for your failure to comply. In addition, you agree that you shall comply with, and shall not (and shall not permit any third party to) avoid or circumvent any access or use controls, security mechanisms or procedures or similar protections established by us with respect to the Service. Your breach of this Section may result in immediate termination of your account(s), and may also subject you to criminal or civil liability.
(a) We may provide you with access to certain interactive communications features ("Features") through which you can communicate in a public forum (either in "bulletin board" formats and/or other message or communication facilities) with other Users of the Service. We are not responsible for (and do not endorse, assert or stand behind the truthfulness or reliability of) any information, comments, views or advice transmitted on or through the Features. Users should always consult a physician or other qualified health care provider before relying on any information they find on any of the Features. We do not regularly monitor the Features, but reserve the right to do so, in its sole and absolute discretion and with or without cause, and to edit or remove any posting or material from any of the Features and to terminate access to the Features at any time by all or any individual User.
(b) Any communication, comment or material ("Submission") that Users post on or send through Features shall be deemed to be non-confidential and non-proprietary, and by posting any Submission on Features Users represent that such Submission is their own work and creation or that it is used by the posting Users with the permission of the copyright holder, and the posting User grants (and represents and warrants the right to grant) us a royalty-free, perpetual, non-exclusive, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any Submissions (in whole or in part) worldwide, and/or to incorporate Submissions in other works, in any form, media or technology now known or hereafter developed. We shall be free, without paying compensation of any kind, to use any ideas, concepts, know-how or techniques contained in any Submission for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and/or services incorporating them.
(c) You are responsible for the content and substance of your activities, transactions, posts and transmissions involving the Service. This means that you, the User, are entirely responsible for all activities, transactions and content that you post, email, upload, or otherwise transmit via the Service. You shall have sole responsibility for evaluating and selecting the third parties with whom you interact using the Service (such as parties to which you send payment). You agree, and represent and warrant to us, that you will not use the Features to upload, transmit, distribute or otherwise post or publish through the Features any content that: (i) is defamatory, obscene, harassing, sexually oriented, pornographic, abusive, threatening, racially, or ethnically offensive or otherwise objectionable; (ii) infringes any intellectual property or privacy right of any person or entity, including without limitation any copyright, trademarks or trade secrets; (iii) advertises or solicits the sale or purchase of any product or service or solicits for any commercial venture or any political, religious or charitable cause; (iv) includes any computer programs, code, scripts, viruses or other harmful code or programs; (v) spoofs or otherwise impersonates any person or entity, including, but not limited to, any other users or any of our personnel, or falsely state or otherwise misrepresent your identity or affiliation in any way; or (vi) violates or advocates the violation of any law or regulation, including, without limitation, any antitrust laws or regulations.
(d) Users shall promptly notify us at support@mobileXware.com if they have reason to believe that any User is infringing any copyrighted materials, including any copyright held by them.
(e) Your acceptance of this Agreement and/or use of the interactive Features signifies your agreement to these terms and conditions regarding use of and disclaimer of liability for such Features.
We may terminate a User's Service immediately, in our discretion, if we believe that the User's conduct fails to conform with this Section or this Agreement. Without limiting the foregoing, if you use, or attempt to use the Service for any purposes other than its intended purposes, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of the Service or for posting or distributing infringing materials, your accounts will be terminated and you may also be subject to civil and criminal liability.
The Software contains trade secrets and proprietary know-how that belong to us and it is being made available to you in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.
This written license agreement is the exclusive agreement between you and us concerning the Software and Services and supersedes any prior purchase order, communication, advertising or representation concerning the Software.
This license agreement may be modified only by a writing signed by you and us.
In the event of litigation between you and us concerning the Software or Services, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party.
This license agreement is governed by the laws of the State of Colorado.
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
In the event that any one or more of the provisions of this Agreement is found to be illegal or unenforceable, then notwithstanding such illegality or unenforceability, this Agreement shall remain in full force and effect, and such term or provision shall be deemed stricken. However, if the stricken provision is of fundamental importance to a party, then that party may immediately terminate the Agreement and any remaining payment or similar remaining performance obligations shall be prorated accordingly.
The titles and headings of each section are intended for convenience only and shall not be used in construing or interpreting the meaning of any particular clause or section.
Ambiguities, inconsistencies, or conflicts in this Agreement shall not be strictly construed against the drafter of the language but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties' intentions at the time this Agreement is entered into.
This Agreement is not for the benefit of any third party, and shall not be considered to grant any right or remedy to any third party whether or not referred to in this Agreement.
Where the context of this Agreement requires, singular terms shall be considered plural, and plural terms shall be considered singular.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF EITHER PARTY HAS WARNED OR BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. MOREOVER, EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT SHALL OUR LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNTS PAYABLE TO US FOR OUR SERVICES AND SOFTWARE.
