- 2. License. The Application includes an application component(s) that are installed on User’s mobile devices. Subject to User’s compliance with the terms of this Agreement, Southco grants User a non-exclusive and non-transferable license to install and use for the licensed term defined in this Agreement. The Application is only for User’s individual use and only under the User’s account. Creation of an account is required for the User to access the Application and a User may not use the Application from any account other than the account they create unless otherwise set forth herein. User shall not use the Application in excess of or beyond the feature set(s), license term, or other restrictions and limitations described in this Agreement or an applicable order for the Application. User may use any user documentation (“Documentation”) provided by Southco or the Application developer (the “Developer”) for the Application as required to exercise the rights granted in this Section. User may not use the Application or Documentation except as expressly set forth in this Agreement, and Southco reserves all rights not expressly granted to User by this Agreement. This Agreement is not a sale of the Application or Documentation or any copy thereof and remains subject to the license agreement (the “License Agreement”) between Southco and its customer that purchased the applicable hardware from Southco (the “Customer”). Other than with respect to Section 6 and 9 below, to the extent User’s use of the Application under the terms of this Agreement conflicts with the terms in the License Agreement, the License Agreement governs.
- 3. Restrictions. User may use the Application and Documentation for their individual use as specified by the Customer only and not by, or for the benefit of, any third party. User shall not, and User agrees not to enable others to: remove or destroy any proprietary rights marks or legends on or in the Application or Documentation; adapt, translate, modify, enhance, or create derivative works of the Application or Documentation; assign, distribute, sublicense, rent, lease, sell, post on the Internet, or otherwise transfer or disclose the Application or Documentation in print or through any electronic or other medium to any third party; make copies of the Application or Documentation other than for archival and backup purposes; attempt to circumvent or disable the Application or any technology features or measures in the Application, including without limitation any access controls or copyright protection mechanisms, by any means or in any manner; or use the Application in any manner to aid in the violation of any third-party intellectual property rights, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of any applicable jurisdictions, including without limitation libel, defamation, obscenity, and privacy-related torts. User shall have no rights with respect to any Application source code and User agrees not to reverse engineer, disassemble, decompile, or otherwise attempt to derive such source code from units of the Application provided to User under this Agreement.
- 4. Confidentiality. User agrees to receive and hold in confidence and not disclose in any manner to any person, firm or entity, except for Customer’s employees with a need to know, the Application or any Documentation, or any other materials delivered to it or information disclosed to it under this Agreement (“Information”). “Information” includes the terms of this Agreement and pricing. User will use the Application, Documentation, and any Information delivered or disclosed to it under this Agreement only for Customer’s business purposes and not by, or for the benefit of, any other party. Upon termination of this Agreement, User shall return or destroy the Information and shall not use the Information for its own or any third party’s benefit.
- 5. Ownership. Southco or the Developer is the owner or licensee of all right, title and interest, including all intellectual property rights, in and to the Application and Documentation, and any works derived from or based on the Application or Documentation. User shall implement protection measures to prevent unauthorized use and reproduction of the Application. User’s obligations regarding confidentiality and intellectual property rights shall survive termination of this Agreement.
- 6. Disclaimer of Warranties. The Application is provided “as-is” without any additional warranties of any kind. THE APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOUTHCO, ON ITS OWN BEHALF AND ON BEHALF OF THE DEVELOPER AND 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, NEITHER Southco NOR THE DEVELOPER PROVIDES ANY WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND 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.
- 7. Infringement. If the Application becomes, or in either Southco’s or the Developer’s sole opinion is likely to become, the subject of a third party’s U.S. patent, trademark, copyright, or trade secret claim (each, a “Claim”), Southco may, at its sole expense and option, procure for User the right to continue using the Application or replace or modify the Application to make it non-infringing. If neither of the foregoing alternatives is reasonably available to Southco, then Southco may terminate this license.
- 8. Term and Termination. The term of this Agreement and the Application license granted herein shall begin on the date the Application is delivered to User and shall remain effective until the License Agreement is terminated or the User’s account is disabled by Customer. User may terminate the license granted above at any time by requesting Customer deactivate User’s account and Application access. Southco may terminate this Agreement and the license immediately, with or without notice, if User breaches this Agreement or uses the Application for a purpose other than its intended use. Upon termination of this Agreement for any reason, User shall: (a) immediately discontinue all use of the Application and Documentation; (b) return to Customer any and all Application, Documentation, media kits, portions of media kits, and authorized copies of the Application, Documentation and media kits, whether used or unused, which refer or relate to the Application; and (c) uninstall and remove any and all copies of the Application, whether authorized or unauthorized, from any device upon which the Application has been installed by or on behalf of User. All provisions of this Agreement relating to ownership, confidentiality, and limitations of liability shall survive any termination of this Agreement.
- 9. Limitation of Liability. In no event shall Southco or the Developer be liable to User in relation to this Agreement or the Application, regardless of the form of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive, or exemplary damages, regardless of whether Southco or the Developer has been made aware of their possibility; (b) lost profits, loss of data, or business interruption losses; or (c) direct damages in an amount in excess of the license fees paid to Customer by User. Any claims relating to this Agreement shall be brought within one (1) year after the party asserting the claim knew, or reasonably should have known, of the existence of the claim.
- 10. Injunctive Relief. User acknowledges and agrees that its unauthorized disclosure or use of the Application, or any other breach of its obligations under this Agreement, will cause damage to Southco that may not be adequately compensated through money damages. As such, User expressly consents to the entry of an order for equitable remedies, including, but not limited to, temporary, preliminary and permanent injunctions to remedy any actual or threatened unauthorized disclosure or use of the Application or breach of this Agreement, by User. These remedies are cumulative and in addition to all other remedies available at law or in equity.
- 11. U.S. Government Restricted Rights. The Application and Documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Application clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Application-Restricted Rights at 48 CFR 52.227-19, as applicable.
- 12. Export Restrictions. User agrees not to export or re-export the Application to any country, person, entity or end user subject to U.S. export restrictions. User shall act in full compliance with all export control laws in regard to any Application, and shall comply with any and all restrictions or conditions imposed by the terms of any U.S. general or validated export license, authorization to re-export, or any other similar grant of authority then in effect, upon User’s use or disposition of the Application.
- 13. Prerelease Application. If any component of the Application or any of its components is marked “Prerelease” or “Beta”, the component of the Application constitutes pre-release code and may be changed substantially before commercial release. You may not use such component in a live operating environment where it may be relied upon to perform in the same manner as a commercially released software product or with data that has not been sufficiently backed up. You may not disclose the results of testing, the nature or features of the Prerelease Application, or any other information about Prelease Application to any other person.
- 15. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Southco is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Southco 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 links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
- 16. General Provisions. In order to ensure consistency in interpretation, this Agreement is entered into and performed in Delaware, and shall be governed by the laws of the State of Delaware (exclusive of its choice of law rules) and the federal laws of the U.S.A. Any action brought by either party related to this Agreement shall be initiated and maintained in the U.S. District Court for the District of Delaware, and the parties expressly submit to the exclusive personal jurisdiction and venue of these courts. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be deemed modified so as to make it valid in a manner consistent with the intent of the parties expressed in that section. Southco’s failure to enforce at any time any of the provisions of this Agreement shall not be construed to be a present or future waiver of such provisions. In addition, the remedies accorded Southco are cumulative and in addition to those provided by law. User shall not assign any of its rights or obligations under this Agreement without Southco’s prior express written consent, which may be granted or withheld at Southco’s sole discretion. Any attempted assignment without such consent shall be void. Subject to the foregoing, this Agreement is binding upon and shall inure to the benefit of each party’s successors and authorized assigns. This Agreement, together with the License Agreement, constitute the entire understanding of the parties with respect to the Application and Documentation. It replaces, supersedes and merges all prior written and oral communications, representations, promises or understandings. This Agreement may be amended from time to time by Southco, but any changes to this Agreement will not be binding on User unless User affirmatively assents to the applicable changes. No purchase order or other administrative document will amend this Agreement, even if accepted by the receiving party without objection.