This software application is licensed under terms and conditions set forth below. By using the Application (as such term is defined herein), you agree to be bound by those terms and conditions.
END-USER LICENSE AGREEMENT
OpenMobile World Wide, Inc. a Delaware corporation with a principal place of business at 111 Speen Street, Suite 114, Framingham, MA (hereinafter, “OpenMobile”), grants You a license to install and use OpenMobile’s Application Compatibility Layer (“ACL”) and the OpenMobile App Services (“OAS”) app (each, the “Application”) subject to the terms and conditions set forth below.
As used in this End User License Agreement (hereinafter, “EULA”, “License” or “Agreement”), the terms “You” or “Your” refer to the person or entity who acquired or for whom this license was acquired, as the case may be. Additionally, OpenMobile and You are referred to, collectively, as the “Parties” and each, individually, as a “Party.”
BY USING THE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. PLEASE READ THIS DOCUMENT CAREFULLY: IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE APPLICATION!
This EULA covers Your use and installation of this Application. This EULA does not cover installation or use of any Android apps, associated files and data (hereinafter, “Android Apps”) using this Application. Please be sure that you have a license or other sufficient grant for rights from the respective owners of those Android Apps before attempting to install or use them. If you are unsure about your rights in these regards, please contact your legal advisor.
GRANT OF LICENSE. OpenMobile grants You a personal, limited, non-exclusive, non-transferable, revocable license to install and use the (a) ACL (including any updates and enhancements that OpenMobile may provide) in object code form only on Your Supported Tizen device and (b) OAS (including any updates and enhancements that OpenMobile may provide) in object code form only on your supported Android device. Together, such licenses are referred to herein as the “License”.
1. RIGHTS. Except as otherwise expressly provided, OpenMobile grants no other express or implied rights to You in regard to the Application. The terms of this License will govern any software upgrades or other Supplemental Components (as defined below) provided for this Application by OpenMobile that upgrade, replace and/or supplement this Application as originally acquired by You (or on Your behalf), unless otherwise indicated by OpenMobile, as the case may be. As used here, the term “object code” refers to a machine-installable app file and the components thereof, including, by way of nonlimiting example, any accompanying XML files, graphic files, and so-forth, whether or not those accompanying files strictly comprise object code.
2. UPDATES. The Application may require Updates to work effectively. “Updates” may include new patterns, definitions or rules for the Application’s security components and/or enhancements to the Application and accompanying documentation. Updates are subject to the terms this EULA in effect on the date the Updates are available for download. Upon download, Updates become Application for the purposes of this Agreement. Updates may also require additional or different license terms that must be accepted before download. Updates will replace previously licensed parts of the Application.
3. RESTRICTIONS ON USE OF APPLICATION. Except as otherwise permitted hereunder, You shall not: (i) copy, distribute, reproduce, rent, lend, loan, or sublicense the Application or any portion thereof; (ii) translate, adapt, modify, alter, or combine the Application or any portion thereof with other applications or software, or prepare derivative works based, in whole or in part, on the Application; (iii) use or permit use of the Application on behalf of others in a computer-based services business; (iv) transmit the Application to others over a network, by telephone, or electronically using any means; or (v) reverse engineer, decompile, disassemble, or otherwise reduce the Application to a human-perceivable form. THE APPLICATION IS NOT INTENDED FOR USE IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT, SYSTEMS OR PROCESSES IN WHICH THE FAILURE OF THE APPLICATION OR ANY ANDROID APP, FILES OR DATA THEREON COULD LEAD TO DEATH, PERSONAL INJURY, FINANCIAL LOSS, PHYSICAL, ENVIRONMENTAL OR OTHER DAMAGE OR ADVERSE CONSEQUENCE. OAS requires use of the OpenMobile AppMall which is subject to the following additional terms of service –
4. SUPPLEMENTAL COMPONENTS. OpenMobile may from time to time, in its sole discretion, develop, and deliver or offer updates, supplements, add-on components, product support services, or Internet-based services components (collectively “Supplemental Components”) for the Application. However, OpenMobile has no obligation under this EULA to provide such Supplemental Components. This EULA applies to such Supplement Components that You may obtain from OpenMobile, unless otherwise indicated by OpenMobile. For purposes of the balance of the provisions contained in this EULA, the Supplemental Components shall be deemed included in the term “Application”.
5. OWNERSHIP AND PROTECTION OF THE APPLICATION. The Application embodies trade secrets, copyrights and other valuable intellectual property of OpenMobile. You acknowledge and agree that OpenMobile is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Application and such intellectual property, including any and all rights under patents, copyrights, trade secrets, and any other intellectual and industrial property rights related thereto. You acknowledge and agree not to take any action inconsistent with such ownership. You shall, at all times, hold the Application in confidence and implement adequate safeguards to ensure that unauthorized persons do not have access to the Application, while it is in Your possession, custody, or control. If You create any derivative works in violation of this EULA based, in whole or in part, on the Application, You hereby assign all rights, title, and interest in and to such derivative works free and clear of any liens, claims, or encumbrances to OpenMobile. You may make a single copy of the Application in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original.
7. EQUITABLE REMEDIES AND ENFORCEMENT. You acknowledge and agree that Your breach of the obligations set forth in this EULA may cause OpenMobile irreparable injury and shall entitle OpenMobile to equitable relief or remedy. The pursuit or securing of any such equitable relief shall not prohibit or limit OpenMobile, its successors, assigns or affiliates from seeking or obtaining any other remedy provided under this EULA or by law.
If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, the Parties agree that a court of competent jurisdiction or any other legal constituted body having the jurisdiction to make such determination shall have the power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to OpenMobile including, but not limited to, those rights and remedies contained in the Uniform Trade Secrets Act, or its state counterparts.
8. DISCLAIMER OF WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. OPENMOBILE AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE APPLICATION “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, AND OPENMOBILE HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. OPENMOBILE AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED, THAT ANDROID APPS ENABLED BY THE APPLICATION WILL BE OPTIMIZED FOR YOUR DEVICE, WILL WORK PROPERLY, OR WILL BE FREE FROM IRRELEVANT WORDS OR IRRELEVANT LINKS, OR THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A PARTICULAR SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPENMOBILE OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES OR AN AUTHORIZED REPRESENTATIVE THEREOF SHALL CREATE A WARRANTY. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME 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 THAT ONE OR MORE OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL OPENMOBILE OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF OPENMOBILE OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, OUR LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT, NEGLIGENCE OR OTHER DEFAULT SHALL NOT EXCEED THE PRICE OF THE APPLICATION. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO ONE OR MORE OF THESE LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. INDEMNIFICATION. You agree to indemnify, hold harmless, and defend OpenMobile, its agents, officers, directors, employees, successors, assigns, and affiliates, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to the breach of this EULA and/or arising out of or relating to Your installation or use of any Android Apps using the Application.
11. EXPORT RESTRICTIONS. You may not use or otherwise export or re-export the Application, except as authorized by United States law. You acknowledge that the Application is of U.S-origin, and agree to comply with all applicable international and national laws that apply to the Application, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by the U.S. and other governments.
12. GOVERNMENT END-USERS. If You are acquiring the Application on behalf of any unit or agency of the United States Government, it is provided to the Government only with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in FAR Sections 52-227-14 and 52-227-19 or DFARS Section 52.227-7013(C)(1)(ii), as applicable. The Application and Application documentation, if any, are “Commercial Items,” as that term is defined at 48 C.F.R. ‘2.101, consisting of “Commercial Computer Application” and “Commercial Computer Application Documentation,” as such terms are used in 48 C.F.R. ‘1 2.21 2 or 48 C.F.R. ‘227.7202, as applicable.
13. TERM and TERMINATION. This EULA shall have effect as of the date of the earlier of Your installation or use of the Application. Without prejudice to any other rights, OpenMobile may terminate this EULA if You fail to comply with the terms and conditions of this EULA. In such event, You must immediately remove the Application from all your devices including all of its component parts. All provisions of this License which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
14. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between the Parties relating to the Application and supersedes any and all prior and contemporaneous oral or written understandings between the Parties as to the subject matter hereof.
15. MODIFICATION AND WAIVER. OpenMobile shall have the right to modify the terms and conditions of this EULA from time to time upon notice to you, upon publication of the terms thereof at OpenMobile’s website, or upon such other notification as OpenMobile in its sole discretion shall deem appropriate and reasonable. The provisions contained in any modified version of this EULA are effective as of the date posted below and supersede all previous terms or conditions. Any waiver by OpenMobile of a term hereof shall be limited to such circumstance or event specifically referenced in a written waiver document, if any, supplied by OpenMobile to You and shall not be deemed a waiver of any other term in this EULA or of the same circumstance or event upon any recurrence thereof.
16. ASSIGNMENT AND BINDING EFFECT. This EULA shall be binding upon and inure to the benefit of the Parties’ respective successors or assigns. This License is made for the benefit of the Parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else. Notwithstanding the foregoing, OpenMobile may at any time assign, transfer or deal in any other manner with all or any of its rights or obligations under this License. You shall not assign, transfer or deal in any other manner with all or any of your rights or obligations under this License.
17. VALIDITY. If any part of this EULA is determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legal constituted body having the jurisdiction to make such determination, the remainder of this EULA shall remain in full force and effect.
18. GOVERNING LAW AND JURISDICTION. This EULA shall be deemed to have been made in the Commonwealth of Massachusetts and shall be governed by, construed, and interpreted in accordance with the laws of the Commonwealth of Massachusetts, USA. With respect to any dispute, controversy, or claim arising out of or relating to this EULA or the relationship between the Parties, the Parties agree and consent to jurisdiction of and exclusive venue in the United States District Court, District of Massachusetts, Boston Division or in the Boston Municipal Court. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any provision of this License (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the Parties. Any claim or cause of action you may have with respect to the Application must be commenced within one (1) year after the claim or cause of action arose. THE PARTIES HEREBY WAIVE THEIR RIGHTS TO TRIAL BY JURY.
19. OPEN SOURCE. Certain items of software included with the Application may be subject to “open source” or other licenses (hereinafter, “Open Source Software”) granted by third parties. Such Open Source Software may not be subject to the terms and conditions of this EULA and, instead, may be licensed under the terms of the respective license notice that accompanies each such item of software or that is otherwise identified with the Application.
- The Application is distributed with software modules licensed under version 2.0 of the GNU General Public License (GPLv2), as more fully specified in the license notices accompanying those modules in this distribution. Corresponding source code for those modules is available to any third party in accord with Paragraph 3(B) of the GPLv2 upon emailing a request to OpenMobile at email@example.com.
- The Application is distributed with software modules licensed under version 2.1 of the GNU Lesser General Public License (LGPLv2.1), as more fully specified in the license notices accompanying those modules in this distribution. Corresponding source code for those modules is available to any third party in accord with Paragraph 6(C) of the LGPLv2.1 upon emailing a request to OpenMobile at firstname.lastname@example.org.
- The Application is distributed with software modules licensed under the Apache License, Version 2.0. You may obtain a copy of this license at http://www.apache.org/licenses/LICENSE-2.0. Unless required by applicable law or agreed to in writing, software distributed under this Apache License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the license for the specific language governing permissions and limitations under the License.
20. THIRD-PARTY BENEFICIARIES. The Application is for the benefit of You only. This EULA does not confer any rights to any other person or entity as a third-party beneficiary or otherwise.
21. HEADINGS. The headings of this EULA are for the purpose of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
22. CONTACTING OPENMOBILE; NOTICES. To contact OpenMobile with any questions or concerns in connection with this EULA or the Application, or to provide notice to OpenMobile hereunder, please email OpenMobile at email@example.com. You agree to receive notices from OpenMobile by email, by publication at OpenMobile’s website, or by such other means as OpenMobile in its sole discretion shall deem appropriate and reasonable.
Effective Date: June 1, 2016