READ CAREFULLY THIS USER LICENSE AGREEMENT BEFORE USING THE PRODUCT OR ACCESSING THE CONTENT ON THIS APPLICATION. BY ACCESSING THE PRODUCT AND/OR THE CONTENT CONTAINED THEREIN, YOU ACKNOWLEDGE AND REPRESENT THAT YOU ARE AN AUTHORIZED USER; THAT YOU HAVE READ THIS AGREEMENT; THAT YOU UNDERSTAND IT; AND THAT YOU AGREE TO BE BOUND BY ITS TERMS.
1.GRANT OF LICENSE. By clicking yes to accept these terms, acknowledging these terms upon initial access of the Software, Telemet grants to Licensee a personal, non–exclusive, non–transferable license to use one copy of the Software only as authorized in this ULA, on one Hardware device at any given time, owned, leased, licensed or otherwise controlled by Licensee, and Licensee hereby acknowledges and agrees to the validity of this ULA, Terms and Conditions and Provider Terms, as applicable, and agrees to be bound hereto. The Software will be in the form and format as determined by Telemet in its sole discretion on from time to time and such form and format may limit or restrict the use of the Software to certain types of Hardware devices at the exclusion of others, and may have additional licensing terms restricting their use thereto. The Software is “in use” on Hardware when it is loaded into temporary memory or installed into permanent memory of that Hardware. Telemet expressly reserves the right to terminate this license grant without notice to Licensee.
2.LIMITATIONS. Licensee may only install, store, and use the Software on one Hardware device for personal, non–commercial purposes only. You may not use the Software, Data or Documentation on any other platform including, but not limited to servers, except as expressly provided herein. The sale and/or redistribution oft e Software is expressly prohibited, unless agreed to in writing by Telemet. Licensee may not remove any proprietary notices that appear in connection with the Software and may not modify the Software in any way. Any copies made of the Software must be restricted to back–up, archival purposes, provide such copy contains all of the original proprietary notices provided with or otherwise relating to such Software.
3.RESTRICTIONS. The Software is licensed to the Licensee, not sold, and only to Licensee and not any third party. License may not use, or permit other individuals or entities to use, the Software except under the terms expressly listed herein. Licensee may receive the Software in more than one medium. This ULA and the software may not be shared with other users or used concurrently on different Hardware devices. Licensee shall not personally, nor permit any other individual or entity to: (a) use the Software, Data and Documentation for service bureau, time–sharing, enterprise, concurrent use or other similar purposes; (b) use the Software, Data and Documentation following expiration or termination of any applicable subscription period; (c) modify , translate, reverse engineer, decompile, disassemble or otherwise reduce the Software to human–readable form nor create derivative works based upon the Software or any part thereof; (d) copy the Software. (except as permitted herein); (e) rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to or copies of the Software; (f) make, distribute, transfer or push copies of the Software from one Hardware Device or medium to another over a network without a specific license from Telemet; (g) export or re–export, directly or indirectly, the Software into any country prohibited by the Unite States Export administration Regulations; and (h) remove any proprietary notices or labels on or relating to the Software. Licensee acknowledge that Telemet has the right to remove listings, restrict access, terminate and otherwise modify the Product provided by Telemet for any reason, including but not limited to a breach of any of the terms of this EULA or any applicable Terms and Conditions, Subscription Terms, or Provider Terms.
4.UPDATES. This license does not grant Licensee any right to any update of the Software and Data and any other licensed material contemplated by this Agreement, although such items may be made available to Licensee from time to time at Telemet’s sole discretion.
5.PROTECTION OF INTELLECTUAL PROPERTY RIGHTS. Telemet Inc. retains all rights title and interest, including rights of trademark and copyright in those things defined here in as “Property of Telemet” is hereby defined to include all rights, title and interest in the Software (subject to any underlying Provider rights therein), The intellectual property rights of all Providers contributing to Software hereto shall remain with the respective Providers, including, without limitation, certain applications, software, features, enhancements and modifications made thereto by the Providers on behalf of Telemet. Access codes and information furnished by Telemet or its Providers to You are intended for Licensee’s sole and exclusive use only and shall be considerer Property of Telemet and/or its Providers. When the Property of Telemet or its Providers is displayed or used any publications of any kind or through any media, all proprietary notices and/or additional licenses or terms included with the property of Telemet or its providers shall not be removed or defaced by Licensee. All rights not specifically expressly granted herein, including Federal and International Copyrights and Industrial Property rights, are reserved for the sole benefit of Telemet or its Providers.
7.DISCLAIMERS. THE SOFTWARE, DATA AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OR TECHNICALSUPPORT OF ANY KIND FROM TELEMET, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TELEMET AND ITS AFFILIATES expressly disclaim any and all representations and warranties, express or implied, arising by law or otherwise, regarding the Software contemplated by this EULA, including without limitation any express or implied warranty of merchantability, express or implied warranty of fitness for a particular purpose, non–infringement, quality, accuracy, completeness effectiveness, reliability, usefulness, that the Software will be error–free, or implied warranties arising from course of dialing or course of performance. TO THE EXTENT ALLOWED BY APPLICABLE LAW , ANY IMPLIED WARRANTIES THAT CAN NOT BE DISCLAIMED ARE LIMITED TO SIXTY (60) DAYS FROM THE DATE OF INITIAL DOWNLOAD OR INSTALLATION OF THE SOFTWARE OR ACCESS, DOWNLOAD, USE OR POSSESS SERVICES PROVIDED BY TELEMET FOR OR ON BEHALF OF LICENSEE. This limited warranty is offered by Telemet alone, and does not extend to any software code, data, information, content and the like that may be contributed to this website, the Software by Providers or unrelated third parties. THE ENTIRE/RISK ARISING OUT OF THE ACCESS, RECEPTION, DOWLOAD, SYNC, USE OR POSSES ON OF THE SOFTWARE, DATA AND DOCUMENTATION REMAINS WITH LICENSEE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE INACCURACIES AND LICENSEE WILL USE COMMON SENSE AND FOLLOW STANDARD SAFETY PRECAUTIONS IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE.
8.LIMITATION OF DAMAGES, TO THE MAXIMUM EXPENTPERMED BY APPLICABLE LAW, IN NO EVENT SHALL TELEMET OR ITS PROVIDORS BE LIABLE TOLICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVEDAMAGES OF ANY KIND, IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, INJURY, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, AND/OR LOSS OF PROFITS ARISINGOUT OF, OR RELATED TO, IN ANY MANNER, THIS EULA, OR THE DELIVERY, PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS, OR USE OF THE SOFTWARE, DATA OR DOCUMENTATION HEREUNDERREGARDLESS OF THE FORESEEABILITY THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIEDWARRANTIES OR LIMITATIONS OR EXCLUSION OF LIABLITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOTHE ABOVE EXCLUSIONS MAY NOT APLLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARYFROM STATE TO STATE.
9.LIMITATlON OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.THE TOTAL LIABILITY OF TELEMET AND ITS PROVIDERS ARISING OUT OF OR IN ANY WAY RELATED TOTHIS AGREEMENT OR ITS IMPLEMENTATION SHALL NOT EXCEED THE GREATER OF $1.00 OR 50% OF THE FEES PAID BY LICENSEE TO TELEMET UNDER THIS AGREEMENT, AND ANY APPLICABLE TERMS AND CONDITIONS, SUBSCRIPTION TERMS, OR PROVIDER TERMS. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THEABOVE LIMITATION MAY NOT APPLY TO LICENSEE. The limited warranty, exclusive remedies, and limited liability set in this ULA are fundamental elements of the basis of the ULA, Terms and Conditions, Subscription Terms, and Provider Terms. Licensee agrees Telemet would not be able to provide the Software, Data to Licensee on an economic basis without such limitations.
10.EVENTS BEYOND TELEMET, INC.’S CONTROL. Telemet shall not be held responsible for any failure or malfunction in power or communications nor the failure or refusal of third party transmission intermediaries to perform, continue or renew their contractual arrangements with Telemet, nor inability to perform occasioned by such or by labor strife, war, riot, terrorism, natural disasters, severe weather or other events beyond the control of Telemet. The unavailability of Software from Telemet’s Providers shall not be considered a disruption of services and shall not affect the obligations of Licensee hereunder.
12.GOVERNING LAW & JURISDICTION. The parties agree to submit to the New York Courts only, for any dispute arising out of this Agreement or related thereto, and consent to the jurisdiction of said Courts and further agree that any and all matters of dispute shall be adjudicated, governed and controlled under and by New York law and this paragraph shall supersede any conflicting choice of law rules. The parties expressly stipulate that the 1990 Convention on Contracts for the International Sale of Goods shall not apply, nor shall the Uniform Computer Information Transactions Act.
13.SEVERABILTY. In the event any term of this Agreement is found by any Court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid an enforceable as though such term were absent upon the date of its executioners long as a party’s rights under this Agreement are not material y affected. In lieu of the unenforceable provision, the parties will substitute or and as part of this agreement a provisory that will be assembler as possible in economic and business objectives as was intended by the unenforceable provision.
- INDEMNITY. Licensee hereby indemnities and agrees to hold Telemet and its parents, subsidiaries, affiliates, and Providers (including their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of each of them) harmless from and against any and all claims, demands and actions: and any liabilities, damages pr expense resulting there from including court costs and reasonable attorney’s fees, arising out of or in connection with any breach of this ULA or any act or omission on the Licensees part relating to the use or possession by Licensee of software.
15.EXPORT RESTRICTIONS AND LEGAL COMPLIANCE. Licensee acknowledges that the Software and other underlying information or technology licensed hereunder is subject to the export control laws and regulations of the U.S.A., and any amendment here of. Licensee acknowledges that no Software, Data, Documentation or other underlying information or technology licensed hereunder may be accessed, downloaded, used, possessed or otherwise exported or re–exported to (or to a national or resident of) any country outside of the United States (including further export if you took delivery of the Software, Data or Documentation outside the United States) without first complying strictly and fully with all export controls that maybe imposed by the United States Government or any country or organization of nations within whose jurisdiction you use the Software, Data, Documentation or other underlying information or technology. If Licensee has any questions regarding its obligations under the United States of America Export regulations. Licensee should contact the Bureau of Export Administration, United States Department of Commerce, and Exporter Counseling Division. Washington, D.C., http://www.bxa.doc.gov/. Licensee represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S; Government as a ‘terrorist supporting country; and (ii) he/she is not listed on any U.S. Government list o prohibited or restricted games.
16.WAIVER. Any waiver hereunder must be made in writing and failure at anytime to require the other party’s performance of any obligation under this Agreement will not affect the right subsequently to requires performance of the obligation.
18.ASSIGNMENT. Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned or delegated by Licensee, to any other person or entity without the prior express written consent of Telemet.
19.TERM AND TERMINATION, This ULA is effective upon your acceptance of these terms and conditions and shall continue until terminated, This Agreement shall terminate automatically if Licensee fails to comply with this ULA and or any applicable Terms and Conditions, Subscription Terms, or Provider Terms, or if payment is delayed or denied processing due to insufficient funds to cover the subscription fees when due, if any, No notice shall be required from Telemet to effectuate such termination. On termination, Licensee must/promptly destroy any and al copies of the Software, Data and/or Documentation, and Licensee may terminate this EU by destroying, removing or obliterating the Software, Data or Documentation and all copies thereof, and certifying as such to Telemet. In the event of any termination by Telemet pursuant to this ULA, Licensee shall not be entitled to any refund of prepaid subscription fees.
20.APPLE TERMS OF SERVICE. Licensee acknowledges and agrees to the following terms and conditions witch Telemet is required to pass on to its customers by Apple; (a) this EU is concluded between Licensee and Telemet only, and not with Apple, and Telemet, not Apple is solely responsible for the Software furnished hereunder and the content thereof; (b) the license granted to Licensee for the Software is a nontransferable license to use the Software solely on any Apple iPhone or Apple iPod touch device that Licensee owns or controls and is select to the Usage Rules set forth in the Apple storefront Terms of Service; (c) Apple shall have no obligation whatsoever to furnish any maintenance or support services with respect to the Software. To the extent any such services are provided for herein or required by law, they shall be the sole responsibility of Telemet; (d) Telemet (and Providers other than Apple, if any) will be solely responsible for any product warranties, whether express or implied by law, to the extent not otherwise disclaimer herein.
21.ENTIRE AGREEMENT. This Agreement represents the entire agreement of the parties hereto related to the subject matter hereof and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this ULA are of no force an effect. Telemet may modify this ULA at any time by positing new ULA on this site, with or without notice to You. You are advised to check this site frequently for updates to this ULA, and any applicable Terms and Conditions, Subscription Terms, or Provider Terms. Questions, complaints or claims regarding these terms or any Products or services furnished hereunder may be submitted in writing to Telemet, Inc. P.O. Box 829, Hunter, NY, 12442, attn.; Contracts Administrator, via email to email@example.com, or you may call us at (518) 263–4968.