This Mobile Application End User License Agreement (“Agreement”) is a legally binding agreement entered into by and between you (“Authorized User” or “you”) and Fenner Dunlop Americas, LLC, whose registered office is at 200 Corporate Center Drive, Suite 220, Corapolis, Pennsylvania 15108 (“Company”). Both Authorized User and Company are referenced in this Agreement individually, as a “party” and collectively, as the “parties.”
This Agreement governs your use of Fenner Dunlop’s mobile application and your use of any data, documents, text, information, software, executable code, access codes, images, audio or video material in whatever medium or form comprised in or used with the Application, together with any error corrections or updates that Company may provide or perform with respect to the Application from time to time (collectively, the “App”). This App is licensed, not sold, to you.
BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR BY DOWNLOADING AND USING THE APP, YOU HEREBY ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ARE LEGALLY BOUND BY SUCH TERMS AND CONDITIONS; AND (III) YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND HAVE THE CAPACITY TO ENTER INTO A LEGALLY BINDING CONTRACT.
In the event that you do not agree to the terms of this Agreement, you cannot download, install, or use the APP and must immediately delete the APP from your mobile device.
- License Grant. Subject to the terms of this Agreement, Company grants you with a limited, non-exclusive, non-transferrable and non-sublicensable license (“License”) to download, install, and use the App on a single mobile device that is owned or otherwise controlled by you (“Mobile Device”) in accordance with the App’s documentation.
- Restrictions on the License. In connection with your use of the App in accordance with this Agreement, you shall not:
a) copy the App, except as expressly permitted by the License;
b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
d) remove, delete, alter, or obscure any trademarks or any copyright, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time;
f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App; or
g) use the App in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; safety-critical applications or environments.
- Reservation of Rights. You acknowledge and agree that the App is provided under a license, and not sold, to you. Nothing contained in this Agreement conveys any ownership interest to you in the App other than to use the App in accordance with the License granted in Section 1 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 App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Mobile Devices Not Owned By Authorized User. If you do not own any Mobile Device that you are using to access the App, you hereby represent and warrant to Company that you have obtained all necessary permissions and authorizations from the Mobile Device’s owner(s) of any such Mobile Device. You acknowledge and agree that you or the owner(s) of any Mobile Device on which you use the App may be charged fees by the applicable service provider for internet access and data usage charges on and for that Mobile Device. You accept all responsibility under this Agreement for the use of the App in relation to any Mobile Device, regardless of whether it is owned by you or another party.
- Updates to the App. Company may develop and provide App updates from time to time and at Company’s sole discretion, which may include upgrades, bug fixes, and/or new App features (collectively, “Updates”). Such Updates may also include the modification or deletion of certain features or functions of the App without prior notice. Company shall have no obligation to release any Updates or to continue to provide a particular feature or function. All Updates issued for the App are subject to the terms and conditions of this Agreement.
- Third-Party Materials. The App may display, include, or make available third-party content, including, without limitation, data, applications, information, other products, services, materials, or include hyperlinks to third-party websites or services (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, validity, legality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and hyperlinks thereto are provided solely as a convenience to you, and your access and use of them shall be entirely at your own risk and subject to any third parties’ terms and conditions.
- Term and Termination.
a) The term of this Agreement shall commence when you download the App and shall continue until terminated by you and Company as set forth in this Section (the “Term”).
b) You may terminate this Agreement at any time by deleting the App from your Mobile Device.
c) Company may terminate this Agreement immediately with written notice to you if: (i) you commit a material breach of this Agreement, which you fail to remedy, to the extent such a breach is capable of remediation, within fourteen (14) days after the service of written notice requiring you to remedy the breach; or (ii) Company decides to stop supporting the App.
Termination of this Agreement shall have no effect on any of Company’s rights or remedies under this Agreement, the law, or in equity.
d) Upon termination of this Agreement for any reason: (i) the License granted hereunder shall immediately terminate; (ii) you shall make no further use of the App and you must cease all activities authorized under this Agreement; (iii) you must immediately delete or remove the App from all Mobile Devices and immediately destroy all copies of the App; (iv) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to damages in connection with any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and (v) any provisions of this Agreement, which expressly or by implication survive termination shall continue in full force and effect.
- Indemnification. You agree to fully defend, indemnify, and hold Company, including its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all claims, lawsuits, demands for damages, causes of action, and other proceedings (collectively, “Claims”) and pay all losses, liabilities, damages, judgments, awards, orders, fines, penalties, interest, settlements, fees, costs (including attorneys’ fees and court costs), and expenses of whatever kind, arising from or relating to: (a) your use or misuse of the App; (b) your breach of this Agreement; or (c) your violation of applicable law.
- Disclaimer of Warranties. THE APP IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS. COMPANY MAKES NO WARRANTY OF ANY KIND REGARDING THE APP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, AND STATUTORY WITH RESPECT TO THE APP, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, TITLE, AND NON-INFRINGEMENT, AND WARRANTY THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. COMPANY PROVIDES NO WARRANTY AND MAKES NO REPRESENTATIONS OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER MOBILE DEVICE, SYSTEMS, SOFTWARE, APPLICATIONS, 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.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE APP FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER OR EQUIPMENT FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.
THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 SHALL APPLY REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR SOME OTHER THEORY OF LIABILITY AND REGARDLESS OF WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 11 IS INTENDED TO EXCLUDE COMPANY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY GIVEN IN THIS SECTION ARE REASONABLE, CONSIDERING ALL RELEVANT CIRCUMSTANCES AND THE LEVEL OF RISK ASSOCIATED WITH THE OBLIGATIONS OF EACH OF THE PARTIES RISING FROM THE APP AND THIS AGREEMENT.
- Export Regulation. The App may be subject to export control laws of the United States, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the App to, or make the App 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, rules, and regulations in connection with your use of the App.
- Severability. In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable under applicable law, the remaining provision of this Agreement shall remain in full force and effect and the offending provision shall be amended to most closely achieve the effect of the original term unless otherwise prohibited by applicable law.
- Notices. If you wish to contact us in writing, or if any condition in this Agreement requires that you provide Company with notice in writing, you may send such writing by email email@example.com or by U.S. mail, postage pre-paid to 200 Corporate Center Drive, Suite 220, Coraopolis, PA 15108. Company will confirm receipt of your communication in writing. In the event that Company must contact you or provide you with notice, we will do so by email, to the extent we have such information, or by providing you with notice from within the App.
- Distracted Driving; Reliance on the App.
AUTHORIZED USER RECOGNIZES THAT IT HAS BEEN DULY INFORMED AND WARNED THAT:
- USE OF THE APP DOES NOT REPLACE OR WAIVE THE AUTHORIZED USER’S OBLIGATION TO DRIVE OR OPERATE MACHINERY IN ACCORDANCE WITH APPLICABLE LAWS AND NOTABLY THOSE RELATING TO DISTRACTED DRIVING. THE AUTHORIZED USER IS AND REMAINS RESPONSIBLE FOR ITS DECISIONS AND THE CONSEQUENCES THAT COULD ARISE FROM USING THE APP WHILE OPERATING AN AUTOMOBILE.
- NON-COMPLIANCE OR NOT CAREFULLY IMPLEMENTING THESE AUTHORIZED USER OBLIGATIONS WITH REGARDS TO REGULATIONS IN FORCE REGARDING THE USE OF MOBILE APPLICATIONS, INCLUDING THE APP COULD RESULT IN LEGAL FINES, PENALTIES, LIABILITIES AND CAUSE DEATH, PERSONAL BODILY INJURY, OR PROPERTY DAMAGE TO ANOTHER PARTY.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard for any conflict of laws provision or rules. For any dispute, claim, action, or proceeding arising out of or in relation to this Agreement or the App, which is not resolved through negotiation between representatives of both parties, the parties irrevocable consent to the exclusive jurisdiction of the state and federal courts in and for Allegheny County, Pennsylvania, USA. The parties waive any claim or challenge that such courts lack jurisdiction or that the venue is inconvenient.
- Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. The failure by a party to exercise, or a delay thereof, of any right or power hereunder shall not operate as a waiver of such right or power, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right under this Agreement.