MOBILE APP LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE.
IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. REVIEW SECTION 8 AS IT HAS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER AND AFFECTS YOUR RIGHT TO BRING A CLAIM IN COURT.
IN ORDER TO USE THE SOFTWARE, USER NEEDS TO: (1) POSSESS A VALID DRIVER’S LICENSE NECESSARY FOR OPERATION OF THE APPLICABLE VEHICLE; AND (2) HAVE THE POWER TO ENTER A BINDING CONTRACT WITH CMT AND NOT BE BARRED FROM DOING SO UNDER ANY APPLICABLE LAW. USER ALSO PROMISES THAT ANY INFORMATION THAT IT SUBMITS TO CMT IS TRUE, ACCURATE, AND COMPLETE, AND IT AGREES TO KEEP IT THAT WAY AT ALL TIMES.
FOR ALL US RESIDENTS:
(1) USERS MUST BE 18 OR OLDER, OR BE 16 OR OLDER; AND (2) HAVE YOUR PARENT OR GUARDIAN’S CONSENT TO THIS AGREEMENT.
FOR ALL EU RESIDENTS (INCLUDING THE UK):
(1) USERS MUST BE THE MINIMUM AGE LAWFULLY PERMITTED TO DRIVE A VEHICLE IN THEIR COUNTRY OF RESIDENCE; AND (2) IF UNDER 16 YEARS OF AGE, HAVE YOU PARENT OR GUARDIAN’S CONSENT TO ENTER INTO THIS AGREEMENT, WHERE THIS IS REQUIRED BY MANDATORY APPLICABLE LAW.
FOR ALL RESIDENTS OF ANY OTHER COUNTRY:
(1) USERS MUST BE THE MINIMUM AGE LAWFULLY PERMITTED TO DRIVE A VEHICLE IN THEIR COUNTRY OF RESIDENCE; AND (2) IF UNDER 18 YEARS OF AGE, HAVE YOU PARENT OR GUARDIAN’S CONSENT TO ENTER INTO THIS AGREEMENT, WHERE THIS IS REQUIRED BY MANDATORY APPLICABLE LOCAL LAW.
This agreement is between Cambridge Mobile Telematics, Inc., of 101 Main Street, Suite 1400, Cambridge, MA 02142, USA a Delaware Corporation (CMT), and the user entering into this agreement (User). The CMT software, modifications, enhancements, documentation, and license keys provided to User and the connected CMT telematics data processing service (collectively, the Software) are licensed and are not sold.
Subject to the other terms of this agreement, CMT grants User a limited duration terminable, non-exclusive, non-transferable license to operate the Software only for User’s personal and non-commercial purposes on one supported mobile device. No technical support services for the Software are provided under this agreement. We may provide updates to the Software from time to time via the Appstore and but do not guarantee that you will able to use such updates.
THE SOFTWARE IS PROVIDED AS IS WITH ALL FAULTS. CMT DISCLAIMS ALL WARRANTIES, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. USER UNDERSTANDS THAT THE SOFTWARE MAY NOT BE ERROR FREE AND USE MAY BE INTERRUPTED.
Any non-public portions of the Software are the confidential and proprietary information of CMT and may only be used by User for purposes of this agreement.
5. CMT PROPERTY.
a. Reservation of Rights. The Software, workflow processes, user interface, designs, technical documentation, and other technologies provided by CMT as part of the Software are the proprietary property of CMT and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with CMT and its licensors. The Software is protected by applicable copyright and other intellectual property laws. User may not remove any product identification, copyright, trademark, or other notice from the Software. CMT reserves all rights unless expressly granted in this agreement.
b. Restrictions. User may not (i) transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service-provider environment; (ii) reverse engineer, decompile, disassemble, or translate the Software; (iii) evaluate the Software for the purpose of competing with CMT; or (iv) operate the Software other than in accordance with its technical documentation.
6. TERM & TERMINATION.
a. Term. This agreement expires when the license is terminated by User or CMT.
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return CMT Property Upon Termination. Upon termination of this agreement or a license for any reason, User must discontinue using the Software, de-install, and destroy the Software within 5 days. Upon CMT’s request, User will confirm in writing its compliance with this destruction requirement.
7. LIABILITY LIMIT.
a. Exclusion of Indirect Damages. Where not prohibited by mandatory applicable law, CMT is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility of such damage or loss or if the damage or loss is foreseeable.
b. Total Limit on Liability. Where not prohibited by mandatory applicable law, CMT’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid or payable by User for the license to the Software.
c. Consumer Law Notice. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. User may have additional consumer rights under local law.
8. GOVERNING LAW AND ARBITRATION.
a. Law and Location. This agreement is governed by the laws of the Commonwealth of Massachusetts (without regard to conflicts of law principles) for any dispute between the parties arising out of or relating to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Middlesex County, Massachusetts, and each party submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction.
b. Optional Arbitration for Claims Less than $7,000 (USD). Notwithstanding the foregoing, for any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $7,000 (USD), the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.
c. Prohibition of Class and Representative Actions. Each party may bring claims against the other only on an individual party basis, and not as a plaintiff or class member in any purported class or representative action or proceeding. The arbitrator may not consolidate or join more than one party’s claims and may not otherwise preside over any form of a consolidated, class or representative proceeding.
9. OTHER TERMS.
a. Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Each party is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by CMT. No waiver is effective unless the party waiving the right signs a waiver in writing.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
f. Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
g. Export Compliance. User must comply with all applicable export control laws of the United States, foreign jurisdictions, and other applicable laws and regulations.
h. U.S. Government Restricted Rights. If User is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5), or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software,” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
i. Open Source Software Licenses. The Software may contain embedded open source software components, which are provided as part of the Software and for which additional terms may be included in the technical documentation.
j. Mobile Software. CMT may make available software to access the Software via a mobile device (Mobile Software). To use the Software, User must have a mobile device that is compatible with the Mobile Software. CMT does not warrant that the Software will be compatible with User’s mobile device. User may use mobile data in connection with the Software and may incur additional charges from User’s wireless provider for these services. User agrees that it is solely responsible for any such charges. CMT hereby grants User a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Software for one User account, on one mobile device owned or leased solely by User, for its personal use. User acknowledges that CMT may, from time to time, issue upgraded versions of the Software, and may automatically electronically upgrade the version of the Software that User is using on its mobile device. User consents to such automatic upgrading on its mobile device and agrees that the terms and conditions of this agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
k. Mobile Software from Apple App Store. The following applies to any Mobile Software User acquires from the Apple App Store (App Store Software): User agrees that this agreement is solely between User and CMT, not Apple, and that Apple has no responsibility for the App Store Software or content thereof. User’s use of the App Store Software must comply with the App Store Terms of Service. User acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software. In the event of any failure of the App Store Software to conform to any applicable warranty, User may notify Apple, and Apple will refund the purchase price for the App Store Software to User. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this agreement and any law applicable to CMT as provider of the App Store Software. User acknowledges that Apple is not responsible for addressing any claims by User or any third party relating to the App Store Software or User’s possession and/or use of the App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this agreement and any law applicable to CMT as provider of the App Store Software. User acknowledges that, in the event of any third-party claim that the App Store Software or User’s possession and use of that App Store Software infringes that third party’s intellectual property rights, CMT, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this agreement. User and CMT acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement as relates to User’s license of the App Store Software, and that, upon User’s acceptance of the terms and conditions of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement as relates to User’s license of the App Store Software against User as a third-party beneficiary thereof.