READ THIS AGREEMENT CAREFULLY BEFORE OPENING OR INSTALLING THIS SOFTWARE
THIS END USER LICENSE AGREEMENT IS A BINDING, CONTRACTUAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU (“YOU” OR “LICENSEE”) AND MOBILEFORCE SOFTWARE, INC. (“MOBILEFORCE SOFTWARE”). THE SOFTWARE (AS DEFINED BELOW) CONTAINS CERTAIN COMPUTER PROGRAMS, DOCUMENTATION, OR OTHER PROPRIETARY MATERIAL THAT BELONG TO MOBILEFORCE SOFTWARE AND ITS SUPPLIERS. YOUR USE OF THE SOFTWARE IS SUBJECT TO YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE “ACCEPT” BUTTON OR OTHERWISE INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, YOU SHOULD CLICK ON THE “CANCEL” BUTTON AND NOT INSTALL OR USE THE SOFTWARE. IF YOU ARE PROCURING THIS LICENSE ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY OR ORGANIZATION.
IN ADDITION, BY INSTALLING OR OTHERWISE USING ANY SOFTWARE UPDATES THAT YOU RECEIVE (“UPDATES”), YOU AGREE TO BE BOUND BY ANY ADDITIONAL LICENSE TERMS THAT ACCOMPANY SUCH UPDATE. IF YOU DO NOT AGREE TO SUCH ADDITIONAL LICENSE TERMS, DO NOT INSTALL OR USE SUCH UPDATES.
The term “Software” means all copies of this Computer program which you are accessing, installing, using, downloading, copying, or otherwise benefiting from, and any updates, modified versions, upgrades, updates, additions, and copies of such software, all of the foregoing in any format including, but not limited to, the format of a temporary plug-in, and all documentation provided to you related to any of the foregoing. THE SOFTWARE MAY CAUSE LICENSEE’S COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET.
The term “Computer” means any virtual or physical device that accepts information in binary code, digital or similar format and manipulates it for a specific result based on a sequence of instructions, and includes without limitation desktop computers, laptop computers, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating the Software.
This Software is licensed (not sold) to you. MobileForce Software and its suppliers retain all copyright, trade secret, trademark, patent and all other proprietary and intellectual property rights in the Software. Your license confers no title to, or ownership in, the Software and MobileForce Software reserves all rights not expressly granted to you.
2. AUTHORIZED USE.
Subject to the terms of this Agreement, MobileForce Software grants to you a nonexclusive, nontransferable, nonsublicensable, limited license to use the Software on a single Computer, only for your own personal use. The Software may not be shared, installed, or used concurrently on different Computers.
Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Software by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use the Software to or for the benefit of third parties; (iv) modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Software; (v) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software; or (vi) resell, sublicense, distribute, or transfer the Software or any component thereof to any third party. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Licensee’s jurisdiction give Licensee such right; provided, however, that Licensee must first request such information from MobileForce Software and MobileForce Software may, in its discretion, provide such information and impose reasonable conditions on such use of the Software to ensure MobileForce Software’s proprietary rights in the Software are protected. Licensee must reproduce and include the copyright notice and other proprietary notices that appear on the original Software on any copies and any media thereof made in accordance with the terms of this Agreement.
4. UPDATES AND UPGRADES.
From time to time MobileForce Software may update or upgrade the Software. When the Computer on which the Software is installed is connected to the internet, the Software may download and install these updates or upgrades without additional notice to You, and such download and installation may occur as a background operation. Such updates or upgrades may change or modify operations, features or functions of the Software.
5. NO WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSEE AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SOFTWARE IS ASSUMED BY LICENSEE. MOBILEFORCE SOFTWARE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITAITON, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MOBILEFORCE SOFTWARE DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MOBILEFORCE SOFTWARE OR ITS SUPPLIERS OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
6. TERM AND TERMINATION.
The term of this Agreement will continue indefinitely until terminated pursuant to this Section 5. This Agreement shall immediately terminate upon Licensee's breach of the Agreement. All provisions except Section 2 shall survive termination. Upon termination, Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof. Termination is not an exclusive remedy and all other remedies will be available whether or not this Agreement is terminated.
7. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOBILEFORCE SOFTWARE OR ITS SUPPLIERS BE LIABLE TO YOU, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR YOUR USE OR RELIANCE UPON THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL MOBILEFORCE SOFTWARE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF US $10.00. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8. GENERAL PROVISIONS.
8.1 Waiver and Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
8.2 Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of California, United States of America, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts in San Francisco, California, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, MobileForce Software may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.
8.3 No Export. Licensee will not remove or export from the United States or reexport from anywhere any part of the Software or any direct product thereof except in full compliance with and with all applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce. Licensee warrants that it is not on the United States’ prohibited party list and is not located in or a national resident of any country on the United States’ prohibited country list. Licensee acknowledges that the Software contains encryption technology, export of which is restricted by the U.S. and certain foreign laws.
8.4 U.S. Government Procurements. The Software qualifies as “commercial Computer software” and the associated documentation qualifies as “commercial Computer software documentation” within the meaning of the 48 C.F.R. 2.101. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and its documentation with only those rights set forth in this Agreement.
8.5 Relationship. Neither party is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will either party transact any business on the other's behalf, nor in any form make promises, representations or warranties that incur any liability for or on behalf of the other party.
8.6 Severability. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of it being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
8.8 Compliance with Laws. Licensee shall comply with all laws and regulations applicable to this Agreement or the transactions contemplated hereby.
8.9 Assignment. You may not assign this Agreement without the prior written consent of MobileForce Software.
8.10 Entire Agreement; Conflict. This Agreement constitutes the complete, final and exclusive statement of the terms of the Agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties. No modification or rescission of this Agreement shall be binding on MobileForce Software unless executed in writing by an executive officer of MobileForce Software. Any different or additional terms of any related purchase order, confirmation, invoice, or similar form shall have no force or effect.
REVISED 01 JUNE 2015