APPTIENT Products (“Product”) are licensed, not sold, to you, by APPTIENT, Inc. (“APPTIENT”) for your use as a contractor of APPTIENT in order to provide services to APPTIENT. The term “You” or “you” means the company, entity or individual who is acquiring the license to use the Product under this End User Agreement for APPTIENT Contractors (this “Agreement”). Your license is subject to your prior acceptance of this Agreement. APPTIENT reserves all rights in and to the Product not expressly granted to you under this Agreement.
a. Scope of License: This license granted to you for the Product byAPPTIENT is limited to a nontransferable license to use the Product on any hardware product (“Device”) that you own or control for the purposes of evaluation and testing of the Product for APPTIENT. This license does not allow you to use the Product on any Device that you do not own or control, and you may not distribute or make the Product available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Product and, if you sell your Device to a third party, you must remove the Product from the Device before doing so. You may not copy (except as expressly permitted by this license), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Product, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Product). Any attempt to do so is a violation of the rights of the APPTIENT and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of this license will govern any upgrades provided by APPTIENT that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Evaluations. You are requested to provide APPTIENT with evaluations of the Product, including reports of any bugs. APPTIENT shall have an unrestricted royalty-free right to use information contained in such evaluations or bug reports for purposes of correcting and/or enhancing the Product. APPTIENT does not promise to provide any support or bug-fixes for the Product, but may do so in its discretion.
c. Compensation. This Agreement and your use of the Product do not entitle you to any compensation from APPTIENT; any compensation payable to you for your services to APPTIENT shall only be effective if agreed to in writing by APPTIENT.
d. Consent to Use of Technical Data. For the purposes of this Agreement, “Content” means information you enter into the device or receive from third parties (such as names, addresses and email addresses of individuals, texts of messages, photographs, videos, sound recordings or other information directly generated by individual humans); and “Technical Data” means information about your Device and its technical characteristics, including but not limited to the type of device, system and application software, and peripherals, network usage, geographical location and the like, but excluding Content.
The Product collects Technical Data but does not collect Content. By using the Product, you give APPTIENT a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to: (i) use Technical Data as required to operate the Product, and internally analyze, enhance or improve the performance of the Product and related services provided to you; disclose the items of Technical Data to subcontractors (including their affiliates) of APPTIENT for the purpose of providing the Product and assisting APPTIENT in the performance of obligations under this Agreement; disclose Technical Data as required by law or the operation of the Product; and (ii) disclose, sell, license, reproduce and distribute Technical Data in aggregate form that does not identify you; provided, restrictions in the foregoing on the use of the Technical Data do not apply to information regarding the End User already in the possession of or available to APPTIENT or a third party prior to being input by and collected from you. You agree that this license includes a right for APPTIENT to make such Technical Data available to other companies, organizations or individuals with whom APPTIENT has relationships, and to use such Technical Data in the operation of such other companies or organizations or by such individuals. You confirm and warrant to APPTIENT that you have all the rights, power and authority necessary to grant the above license.
e. Termination. The license is effective until terminated by you or APPTIENT. Your rights under this license will terminate automatically without notice from the APPTIENT if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Product and destroy all copies, full or partial, of the Product. APPTIENT’s rights to use Technical Data collected prior to termination continues regardless of any termination of this Agreement. APPTIENT reserves the right to modify, suspend, or discontinue the services provided through the Product (or any part or content thereof) at any time with or without notice to you, and APPTIENT will not be liable to you or to any third party should APPTIENT exercise such right.
f. NO WARRANTY: Due to the pre-release nature of the Product, and the fact that you are provided the Product without charge, APPTIENT makes no warranties whatsoever as to the operational performance of the Product. No maintenance or support services will be provided for the Product by APPTIENT or its suppliers. You acknowledge that neither APPTIENT nor its suppliers have any obligation whatsoever to furnish any maintenance and support services with respect to the Product. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT AND ANY SERVICES PERFORMED OR PROVIDED BY THE PRODUCT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPTIENT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. APPTIENT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPTIENT OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE PRODUCT OR SERVICES 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 THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
g. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPTIENT BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF APPTIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall APPTIENT’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
h. You may not use or otherwise export or re-export the Product except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Product, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
i. The Product and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
j. The laws of the Commonwealth of Massachusetts, USA, excluding its conflicts of law rules, govern this license and your use of the Product. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and is hereby specifically excluded. Your use of the Product may also be subject to other local, state, national, or international laws. Your rights hereunder are personal and non-assignable, but nothing limits APPTIENT’s rights to assign its rights hereunder.