END USER LICENSE AGREEMENT
Thank you for selecting AccuTerm® Mobile. This End User License Agreement (this “Agreement”) is between you (“Licensee”) and Zumasys, Inc. (“Zumasys”), and governs the use of the Zumasys AccuTerm Mobile Application (the “Licensed Application”).
If you agree to be bound by all of the terms and conditions of this Agreement, click the “Accept” button.
If you do not agree with any of the provisions of this Agreement, do not click the “Accept” button and do not install or use the Licensed Application. If you paid a license fee for the Licensed Application, you may request a refund from iTunes or the App Store.
1. Parties. This Agreement is between Licensee and Zumasys. Apple, Inc. (“Apple”) is not a party to this Agreement. As between Zumasys and Apple, Zumasys is solely responsible for the Licensed Application, including its content. Although Apple and its subsidiaries are not parties to this Agreement, Apple and its subsidiaries have the right (and will be deemed to have accepted the right) to enforce this Agreement against Licensee as a third party beneficiary.
2. Limited License.
2.1 Subject to the provisions of this Agreement, Zumasys grants to Licensee a limited, nonexclusive, nontransferable, revocable, license to install and use the Licensed Application only on an iPhone, iPod touch, iPad, or other Apple device that the Licensee owns, controls, or authorizes for use as permitted by the Usage Rules stated in the Apple App Store Terms and Conditions.
2.2 The foregoing license does not convey any rights of ownership in the Licensed Application. Zumasys reserves all rights not expressly granted to Licensee in Section 2.1.
3.1 The Licensed Application is protected by copyright, trade secret, and other intellectual property laws and rights. Except as may be expressly permitted in Section 2.1 above, Licensee will not (a) modify, adapt, translate or create derivative works of the Licensed Application; (b) decompile, disassemble, reverse engineer, reverse-translate, or otherwise attempt to derive source code or other non-public features, structural framework, elements or data, of the Licensed Application; (c) probe, test, tamper with, defeat, disable or circumvent, any encryption, security measure, protocol or other protective mechanism related to the Licensed Application; (d) sell, sublicense, lease, rent, timeshare, or distribute any portion of the Licensed Application, whether for profit or otherwise; (e) make the Licensed Application accessible to the public or third parties, whether over networks, cloud servers, electronic bulletin boards, websites, service bureaus or otherwise; (f) remove or modify any proprietary markings in or on the Licensed Application; or (g) enable, encourage or allow anyone to do any of the foregoing.
3.2 Except as expressly permitted under this Agreement, the copying or reproduction of the Licensed Application to any other mobile device, server, hardware, or other location is expressly prohibited.
5. Warranty. THE LICENSED APPLICATION IS PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, ZUMASYS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT. ADDITIONALLY, ZUMASYS DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT INTERRUPTION. IF AND TO THE EXTENT ANY WARRANTY EXISTS UNDER APPLICABLE LAW THAT CANNOT BE DISCLAIMED, ZUMASYS, NOT APPLE, WILL BE SOLELY RESPONSIBLE FOR SUCH WARRANTY AND THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY WILL BE LIMITED TO, AT THE OPTION OF ZUMASYS, (A) REPAIR OF THE LICENSED APPLICATION; (B) REPLACEMENT OF THE LICENSED APPLICATION; OR (C) A REFUND OF THE LICENSE FEE PAID BY LICENSEE.
6. Support and Maintenance.
6.1 Any support and maintenance may be subject to a separate support and maintenance agreement and Licensee’s payment at the then-current standard rates of Zumasys. If and to the extent any support or maintenance is required by applicable law, Zumasys (not Apple) will be obligated to provide such support or maintenance.
6.2 This Agreement will govern any updates to the Licensed Application, unless the update is accompanied by a separate license agreement in which case the terms of that license agreement will govern.
7. Product Claims. In the event of any third party or Licensee claim relating to the Licensed Application, or the Licensee’s possession or use of the Licensed Application, Zumasys (not Apple) will be solely responsible to address any such claim, including any (a) product liability claim; (b) claim that the Licensed Application failed to conform to any applicable legal or regulatory requirement; or (c) claim arising under consumer protection or similar legislation.
8. Intellectual Property Rights. In the event of any third party claim that the Licensed Application, or the Licensee’s possession or use of the Licensed Application, infringes the third party’s intellectual property rights, Zumasys (not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
9. Legal Compliance. Licensee represents and warrants (a) Licensee is 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, and (b) Licensee is not listed on any U.S. Government list of prohibited or restricted parties. Licensee agrees that Licensee will not use the Licensed Application for any purposes prohibited by United States law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
10.1 Licensee’s rights under this Agreement will terminate automatically without notice from Zumasys if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately stop all use of and delete the Licensed Application
10.2 Sections 3, 5, 7, 8, 9, 10, 11, 12, 13, and 14 of this Agreement will survive and remain in effect even if this Agreement is terminated.
11. Limitation of Liability. IN NO EVENT WILL ZUMASYS’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $50.00. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL ZUMASYS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, SUCH AS LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGE OR LOSS ARISING OUT OF OR RELATING TO LICENSEE’S USE OF, OR INABILITY TO USE THE LICENSED APPLICATION. THE LIABILITIES LIMITED BY THIS SECTION APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF ZUMASYS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, ZUMASYS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
12. Interpretation. If an ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will favor or disfavor either party by virtue of authorship. All references to “including,” and “such as” are intended to be interpreted in the broadest sense and without limitation.
13. Third Party Beneficiaries. Except as expressly stated in Section 1 above, this Agreement is made solely for the benefit of Zumasys and Licensee, and nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any other persons.
14. Other Important Provisions. This Agreement (a) does not create any agency, partnership, joint venture, or fiduciary relationship; (b) embodies the entire understanding between the parties pertaining to the subject matter, and any additions or modifications to this Agreement must be in writing signed by an authorized representative of both parties; (c) will inure to the benefit of and be binding upon the parties, their successors, and permitted assigns; (d) cannot be waived by failure to enforce any provision, except in writing; (e) will be construed according to the laws of the State of California, U.S.A., without giving effect to its conflict of laws provisions, and any action brought regarding this Agreement must be filed exclusively in the state or federal courts located in Orange County, California, U.S.A.; (f) will be construed as severable, so the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provision of this Agreement; and (g) has been entered into with the authority of Licensee and is legally binding on Licensee.
15. Contact Information. If there are questions, comments, complaints or claims with respect to the Licensed Application, please contact Zumasys at:
9245 Research Drive
Irvine, CA 92618