End User License and Service Agreement for SPOTLYFE
This End User License Agreement (this “Agreement”) concerns the SPOTLYFE platform, provided to you by Alinear, Inc., a Delaware corporation doing business as SPOTLYFE (“Company”), as well as related websites, mobile applications, products, and services we may offer to you, including updates, any online services, or downloads associated herewith, the software (including firmware) for any related peripherals, and the associated media, printed materials, and documentation (collectively, “Program”).
You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to access the Program in accordance with the Customer Agreement. By opening this package, downloading, installing, or using the Program or “clicking to accept,” you accept the terms of this Agreement with Company. If you do not agree to these terms, you are not permitted to install, copy, or use the Program. To reject these terms, you must not “click to accept” these terms or install, copy, or use the Program.
Except for Section 10 (regarding Jurisdiction and Applicable Law), Company reserves the right to modify this Agreement at any time by any means, including without limitation by (1) posting the modifications to www.spotlyfe.com/eula and/or (2) requiring you to “click to accept” the Agreement. By continuing to use the Program, you accept any and all modifications to this Agreement. If modifications to the Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Program. If any future modifications are implemented as a “click to accept” Agreement, you may not be able to continue using the Program unless you affirmatively accept the modified Agreement.
1. Limited Use License. Subject to and conditional upon your strict compliance with all terms and conditions of this Agreement, Company grants you the non-exclusive, non-transferable, limited license to [DOWNLOAD/INSTALL/ACCESS] and use the Program solely for its intended purpose. All rights not specifically granted are reserved by Company. This Agreement shall also apply to updates to the Program that may be provided to you by the Company, provided that such update may be accompanied by additional terms. You acknowledge and agree that, other than the license granted to you by this Agreement, you shall have no ownership or property interest in any product or service-provided content (as defined below). License Intellectual Property Rights. You acknowledge and agree that the Program is provided under a license, and not sold, to you. You do not acquire any ownership interest in the Program under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. The Company reserves and shall retain its entire right, title, and interest in and to the Program and all Intellectual Property Rights arising out of or relating to the Program, except as expressly granted to you in this Agreement. You shall use commercially reasonable efforts to safeguard the Program from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify us if you becomes aware of any infringement of the Company’s Intellectual Property Rights in the Program and fully cooperate with the Company in any legal action taken by us to enforce our Intellectual Property Rights.
2. License Conditions. This license is subject to the limitations outlined in this Section. Any use of the Program in violation of these limitations will result in an immediate termination of your license and continued use of the Program will be an infringement of Company’s rights in and to the Program.
You agree that you will not do, or allow, any of the following:
- Use the Program beyond the scope of the license granted under Section 1;
- provide any other person, including any subcontractor, independent contractor, affiliate, or service provider, with access to or use of the Program;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Program or any part thereof;
- combine the Program or any part thereof with, or incorporate the Program or any part thereof in, any other programs;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Program or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Program, including any copy thereof;
- Copy the Program, in whole or in part;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Program, or any features or functionality of the Program, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
- use the Program in violation of any law, regulation, or rule; or
- use the Program for purposes of competitive analysis of the Program, the development of a competing software product or service, or any other purpose that is to the Company’s commercial disadvantage.
All rights granted to you under this Agreement (including your use of the software in the Program) will terminate immediately in the event that you are in breach of any of the terms or do anything with any software in the Program that is not expressly permitted by this Agreement.
You agree not to do any of the following actions while using the Program:
- transmit any User Content that Company considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
- impersonate any person or entity, including but not limited to Company;
- disrupt normal Program functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Program experience;
- intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Program; or
- invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.
3. Intellectual Property Rights. You acknowledge and agree that the Program is provided under a license, and not sold, to you. You do not acquire any ownership interest in the Program under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. The Company reserves and shall retain its entire right, title, and interest in and to the Program and all Intellectual Property Rights arising out of or relating to the Program, except as expressly granted to you in this Agreement. You shall use commercially reasonable efforts to safeguard the Program from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify us if you becomes aware of any infringement of the Company’s Intellectual Property Rights in the Program and fully cooperate with the Company in any legal action taken by us to enforce our Intellectual Property Rights.
4. Patches and Updates. Company may deploy or provide mandatory patches, updates, and modifications to the Program that must be accepted or installed for you to continue to use the Program. Company may update the Program remotely without notifying you, and you hereby grant to Company consent to deploy and apply such patches, updates, and modifications.
5. Termination. Without prejudice to any other rights of Company, this Agreement will terminate automatically if you fail to comply with any of its terms and conditions. In the event of termination for this reason, you must destroy all copies of the Program and all of its component parts. You may also terminate the Agreement at any time by permanently [CEASING TO USE THE PROGRAM/DELETING ANY INSTALLATION OF THE PROGRAM IN YOUR POSSESSION OR CONTROL]. The following provisions shall survive termination of this Agreement: license conditions (Section 2), Intellectual Property Rights (Section 3), Indemnification (Section 6), Access (Section 7), Disclaimers (Section 8), Limitation of Liability (Section 9), Jurisdiction and Applicable Law (Section 10), and Entire Agreement (Section 12).
6. Indemnification. You agree to indemnify, defend, and hold Company, its partners, affiliates, licensors, contractors, officers, directors, employees, and agents harmless from all damages, losses, and expenses arising out of or relating to any third-party claim concerning: (a) your use of the Program (including any un-authorized activities under your account); or (b) breach of this Agreement or violation of applicable law by you or your User Content.
8. Disclaimers. THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
9. Limitation of Damages. IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE PROGRAM; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Jurisdiction and Applicable Law. Any dispute or claim relating in any way to your use of the Program, or to any products or services sold or distributed by Company, will be adjudicated in the Federal and/or State courts located in the State of North Carolina, and you consent to exclusive jurisdiction and venue in such courts. The laws of the State of North Carolina, without reference to its conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us.
11. Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 11 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Company as a party to this Agreement and Company is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
12. Entire Agreement. This Agreement, together with the Customer Agreement, is the complete Agreement concerning this license between the parties and supersedes any and all prior Agreements and representations between them. If any provision of this Agreement is held to be unenforceable, the applicable provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected, except as otherwise expressly provided herein.
13. No Waiver. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.