Subject to the terms and conditions of this Agreement, IActionable hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable license during the Term (as defined below) to download and install the Software on a single computer or mobile device and use the Software and the content and services made available in or otherwise accessible through the Software for your personal, non-commercial use.
You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to IActionable); (b) distribute, sell, sublicense, rent, or lease the Software, or use the Software for time sharing, hosting, service provider, or like purposes; (c) remove any product identification or copyright, trademark, or other intellectual property or proprietary rights notices contained in the Software; (d) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by IActionable; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) use the Software in violation of any federal, state, or local law, regulation, or rule; (g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Software; or (h) use the Software for purposes of competitive analysis, the development of a competing software product or service, or any other purpose that is to IActionable’s commercial disadvantage.
You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted herein and subject to the terms and conditions of this Agreement. IActionable and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or thereto, except as expressly granted to you in this Agreement.
You may be required to register for an account in order to access and use certain features of the Software. When you provide information during the registration process, you agree to provide only true, accurate, current, and complete information and to update it as necessary to maintain its truth and accuracy. If you register for an account, you agree to accept responsibility for all activities that occur under your username and/or password (“Login Credentials”), if any, and you agree that you will not sell, transfer, or assign your account or any rights hereunder. You are responsible for maintaining the confidentiality of your Login Credentials so that others may not access the password-protected portions of the Software using your Login Credentials in whole or in part. You agree to immediately notify IActionable of any unauthorized use of your Login Credentials or any other breach of security. IActionable is not liable for any loss or damage arising from your failure to protect your Login Credentials.
You are responsible for all information, data, and other materials uploaded, posted, created, or stored through your use of the Software, including any feedback, suggestions, or ideas you provide (collectively, “Content”). You hereby grant to IActionable a worldwide, perpetual, non-exclusive, fully paid-up, royalty-free, sublicensable, transferable right and license to reproduce, display, distribute, perform, transmit, edit, modify, create derivatives works of, publish, sell, commercially exploit, use, and disclose your Content for any purpose and in all forms and all media whether now known or to become known in the future. You hereby represent and warrant that (a) you own or otherwise have the right to grant the foregoing rights and license to IActionable with respect to your Content, and (b) your Content and any use thereof by IActionable will not infringe or violate the rights of any person or entity or any federal, state, or local laws, regulations, or rules. IActionable is not responsible for the Content you submit through the Software, and shall have no obligation with respect to such Content.
IActionable may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that IActionable has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on the settings of your computer or mobile device, when such device is connected to the internet either: (a) the Software will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement.
This Agreement and the license granted hereunder commences on the date you first accept it and continues until terminated as set forth herein (the “Term”).
You may terminate this Agreement by ceasing to use Software and deleting all copies of the Software from your computer and/or mobile device. IActionable may suspend your access to the Software and/or terminate this Agreement if you breach this Agreement. Upon termination of this Agreement, the license granted hereunder shall also terminate, and you shall cease using the Software. Sections 1.3, 5.2, and 6 through 11 shall survive the termination of this Agreement for any reason. Termination of this Agreement will not limit any of IActionable’s rights or remedies at law or in equity.
Communications between you and IActionable may be by electronic means. You hereby consent to receive communications from IActionable in electronic form, and agree that all terms and conditions, agreements, notices, disclosures, and other communications that IActionable provides to you electronically satisfy any legal requirement that such communications be in writing.
THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IACTIONABLE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, IACTIONABLE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, 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, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT WILL IACTIONABLE , ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR (a) YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE, INCLUDING LOSS OF REVENUE, PROFITS, OR BUSINESS, LOSS OF USE, OR LOSS OF DATA; (b) ANY UNAUTHORIZED ACCESS TO OR USE OF ANY PERSONAL INFORMATION OR OTHER CONTENT THAT IS TRANSMITTED BY OR RECEIVED FROM YOUR OR CREATED, MAINTAINED, OR TRANSMITTED BY IACTIONABLE ON YOUR BEHALF; AND/OR (c) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED THROUGH THE SOFTWARE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT IACTIONABLE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL IACTIONABLE’S CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSER OF THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO IACTIONABLE FOR THE SOFTWARE. THE LIMITATIONS OF LIABILITY HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECT A FAIR ALLOCATION OF RISK. THE LIMITATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF IACTIONABLE SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
You agree to defend, indemnify, and hold IActionable, its affiliates, and its and their respective officers, directors, employees, agents, licensors, and service providers harmless from and against any and all liabilities, damages, awards, settlements, losses, claims, costs, and expenses of any kind (including reasonable attorneys’ fees) arising out of or resulting from, in whole or in part, use of the Software, breach of this Agreement, or any violation of federal, state, or local law, regulation, or rule by you or by any other person or entity accessing the Software using your Login Credentials or otherwise via your account.
IActionable is are based in the state of Utah in the United States. You acknowledge that you may not be able to access the Software or certain features of the Software outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Software from outside the United States, you are responsible for compliance with local laws.
This Agreement is governed by the laws of the State of Utah, USA, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Software shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and you further agree that such courts shall have in personam jurisdiction and venue with respect to you, and you hereby submit to the in personam jurisdiction and venue of such courts. You hereby waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE.
IActionable’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of this Agreement will continue in full force and effect.
IActionable may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of your rights or obligations hereunder without the prior written consent of IActionable. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101, and is provided with RESTRICTED RIGHTS. Accordingly, if you are a United States Government end user, you shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense end users, or (b) 48 C.F.R. §12.212, with respect to all other United States Government end users.
The Software and underlying information or technology are subject to United States export restrictions and import restrictions by certain foreign governments. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, Syria or any other country subject to United States sanctions applicable to the export or re-export of goods; (b) to anyone on the United States Treasury Department’s List of Specially Designated Nationals and Blocked Persons List, or the United States Commerce Department’s Denied Persons List, Unverified List, Entity List, or Nonproliferation Sanctions List; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. By downloading, installing, or using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and you acknowledge you are responsible for obtaining any necessary United States or foreign government authorization to ensure compliance with United States and foreign law. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the technical specification documentation generally made available by IActionable to its customers with regard to the Software, or IActionable shall provide a list of the Open Source Software for a particular version of the Software to you upon your written request. To the extent required by the applicable licenses that accompanies the Open Source Software, the terms of such licenses will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification, or reverse engineering.
You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to IActionable which would not be adequately compensated by monetary damages and that IActionable shall, in addition to any and all other rights and remedies that may be available at law (which IActionable does not waive by the exercise of any rights hereunder), be entitled to injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach, without the necessity of posting a bond or other security.
Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (a) actual receipt, irrespective of the method of delivery; (b) the time of transmission from IActionable if sent via email, as date stamped by IActionable’s systems; (c) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (d) on the sixth day after mailing by registered or certified United States mail, return receipt requested, postage prepaid. All such communications shall be addressed (i) if to you, to the address registered to your account, and (ii) if to IActionable, to IActionable, Inc., 1000 Mill Pond Drive D5, Lehi, UT 84043 or email@example.com, or to such other address as IActionable may designate by notice served as required herein.
If the Software is downloaded from the Apple iTunes Application Store (“App”), then you acknowledge and agree to the following additional terms: (a) Apple has no liability for the App or its content; (b) your use of the App is limited to a non-transferable license to use the App on any iPhone™, iPad™, or iPod Touch™ that you own or control as allowed by the Application Store Terms of Service; (c) Apple has no obligation whatsoever to furnish any maintenance and support services for the App; (d) IActionable is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be IActionable’s sole responsibility; (e) Apple is not liable for any claims relating to the App or your possession and/or use of the App, including, but not limited to (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal requirement, and (iii) consumer protection claims; (f) in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, IActionable, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim; (g) you represent and warrant that (i) you are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) you are not listed on any United States Government list of prohibited or restricted parties; (h) you must comply with applicable third party terms of agreement when using the App; and (i Apple and its subsidiaries are third party beneficiaries of this Agreement with respect to the App, and Apple will have the right to enforce the Agreement against you as a third party beneficiary.