Mobile Application End User License Agreement
This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and NOCELL TECHNOLOGIES, LLC ("Company"). This Agreement governs your use of the NOCELL® App on your MOBILE DEVICE, (including all related documentation, the "Application"). The Application is licensed, not sold, to you. The Application is provided to you in connection with your employment by, or contractual services to, a third-party business that is under contract with Company (“Customer”). References in this Agreement to “Reseller” mean a reseller that is providing the Company’s services to the Customer.
BY CLICKING THE "AGREE" BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; 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 THE APPLICATION, AND IF YOU HAVE ALREADY DONE SO, DELETE IT FROM YOUR MOBILE DEVICE.
1. License Grant
Subject to the terms of this Agreement, the Company grants you a limited, non-exclusive and nontransferable license to download, install and use the Application for your own use on up to three mobile devices owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation.
2. License Restrictions
Licensee shall not:
copy the Application, except as expressly permitted by this license;
modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason; or
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
3. Reservation of Rights
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4. Collection and Use of Your Information
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. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
the Application will automatically download and install all available Updates; or
you may receive notice of or be prompted to download and install available Updates.
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.
6. Term and Termination
The term of Agreement commences when you install the Application and will continue in effect until terminated by you or Company as set forth in this Section.
You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device. You are advised, however, that deleting this Application from your Mobile Device without the consent of your employer or other Customer to whom you provide services may violate the terms of your employment and/or contractual obligations to such Customer.
Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice: (i) when the Company’s or Reseller’s agreement with Customer terminates, or (ii) if you violate any of the terms and conditions of this Agreement.
Upon termination: all rights granted to you under this Agreement will also terminate;
you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account; and
Sections 7 and 8 hereof shall survive the termination of this Agreement.
Termination will not limit any of Company's rights or remedies at law or in equity.
7. Disclaimer of Warranties
THE APPLICATION IS 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, 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 THAT THE 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.
8. 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 FOR:
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
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE 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.
END USER UNDERSTANDS AND AGREES THAT THE COMPANY’S PRODUCTS AND SERVICES ARE DESIGNED TO PROVIDE THE COMPANY’S CLIENTS WITH INFORMATION THAT ALLOWS THE CUSTOMER TO ENFORCE ITS POLICIES, BUT END USER AGREES THAT THE COMPANY IS NOT RESPONSIBLE FOR SUCH ENFORCEMENT. THE COMPANY MAKES NO REPRESENTATION THAT ITS CUSTOMER’S POLICIES WILL BE FOLLOWED OR THAT THE COMPANY’S PRODUCTS WILL REDUCE DISTRACTED DRIVING. END USER AGREES THAT THE COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO ANY DAMAGE OR INJURY, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM OR RELATING TO CLIENT’S BUSINESS OR OPERATIONS, INCLUDING WITHOUT LIMITATION ANY LIABILITY RESULTING FROM OR RELATING TO TRAFFIC ACCIDENTS INVOLVING CUSTOMER’S FLEET, EMPLOYEES, INDEPENDENT CONTRACTORS OR DRIVERS, INCLUDING WITHOUT LIMITATION END USER.
9. 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.
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.
11. Governing Law
This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 shall be instituted exclusively in the courts of the State of California located in Orange County, California. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
12. Limitation of Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
13. Entire Agreement
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.