MOBIDIA END USER LICENSE AGREEMENT (EULA) FOR BETA PROGRAMS
BY USING THIS APPLICATION AND/OR PARTICIPATING IN CONFIDENTIAL BETA PROGRAMS YOU AGREE TO THE TERMS OF THE AGREEMENT BELOW:
This is a legal agreement between you (“Licensee”) and Mobidia Technology Inc. (hereinafter “Mobidia”), the Licensor, regarding Licensee’s confidential use of Mobidia Software and all data or content that is accessed or utilized by Mobidia Software (collectively “the Software”). By installing or using the Software, Licensee agrees to the terms of this End User License Agreement (hereinafter “EULA”). If Licensee does not agree to the terms of this EULA and confidentiality, Licensee is not entitled to use the Software and must uninstall the Software from any and all computers, tablets, mobile or smart phones and/or devices on which it is installed.
1. Grant of License and Reservation of Ownership. Subject to the terms and conditions of this EULA, Mobidia hereby grants to Licensee a non‐exclusive, non‐transferable, non‐assignable license to install and use copies of the Software on up to 10 iOS or Android personal mobile device that Licensee owns or controls or is associated with (the “Device”), solely in machine executable object code form and solely for Licensee’s personal use. Mobidia retains title and exclusive ownership of any and all copies of the Software, Services and/or any related documentation licensed hereby.
2. Changes to License, Software, Service. Mobidia reserves the right to change any and all part of the License at any time. Licensor’s continued use of the Software upon notice of the changed terms, will constitute Licensee’s acceptance of the changed terms of the License. Mobidia is routinely enhancing and evolving its Software. Thus, Mobidia may alter, change, update and/or discontinue any Software and/or any and all services at any time without notice or liability to Licensee.
3. License Restrictions. Licensee covenants and agrees that it will not (i) whether in whole or in part, sell, rent, lease, sublease, license, sublicense, lend, time‐share, transfer, assign or provide the use of or access to the Software, or any portion thereof, to unlicensed persons; (ii) assign, mortgage, charge or otherwise encumber either the Software or its rights under this Agreement; (iii) reverse engineer, decompile or disassemble the Software; (iv) alter, modify or create any derivative works of the Software and Related Materials or any portion thereof; (v) except as permitted elsewhere in this Agreement, make additional copies of the Software or any portion thereof; or (vi) obscure or remove any copyright or trademark notices.
4. Trademarks and Copyrights. The Software is owned by Mobdia and is protected by U.S. and Canadian copyright laws and applicable international treaties and/or conventions. Without limiting the prohibition on assignment contained elsewhere in this Agreement, Licensee acknowledges that its rights to use the Software is personal to Licensee.
5. Consent to Use of Data. Licensee agrees that Mobidia may collect and use technical data and related information, including but not limited to technical information about Licensee’s device, system and application software, and peripherals, that is gathered periodically to facilitate the
provision of software updates, product support and other services to Licensee (if any) related to the Software. Mobidia may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or to provide services or technologies to Licensee.
6. Services; Third Party Materials. The Software may enable access to Mobidia’s and third party services and web sites (collectively and individually, "Services"). Use of the Services may utilize Internet access and that Licensee accept additional terms of service.
Licensee understands that by using any of the Services, Licensee agrees to use the Services at Licensee’s sole risk and that Mobidia shall not have any liability to Licensee.
Location data provided to or by any Mobidia Software or Services is for informational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to any damages or harm.
Licensee agrees that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that Licensee will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. Licensee agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and Licensee shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from Software are not available in all languages or in all countries. Mobidia makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent Licensee chooses to access such Services or Materials, Licensee does so at Licensee’s own initiative and is responsible for compliance with any applicable laws, including but not limited to applicable local laws. Mobidia, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Mobidia be liable for the removal of or disabling of access to any such Services.
7. Disclaimer of Warranty. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIS SOFTWARE IS AT ITS SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH LICENSEE. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF DEVICES OR THIRD PARTY SOFTWARE. EXCEPT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MOBIDIA AND MOBIDIA’S LICENSORS (COLLECTIVELY REFERRED TO AS “MOBIDIA” FOR THE PURPOSES OF THIS SECTION) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON‐INFRINGEMENT OF THIRD PARTY RIGHTS. MOBIDIA DOES NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE’S USE AND ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR‐FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MOBIDIA SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MOBIDIA OR ITS LICENSORS ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY REFERRED TO AS “MOBIDIA” FOR PURPOSES OF THIS SECTION) BE LIABLE TO LICENSEE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, DISCLOSURE OF INFORMATION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SIMPLEROUNDS OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING, THE FAILURE OF ESSENTIAL PURPOSE OF, ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL MOBIDIA AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS EULA, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY LICENSEE FOR THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Indemnification. Licensee agrees to defend, indemnify and hold Mobidia harmless from and against any and all claims, suits, losses, liability, costs and/or expenses (including, but not limited to, reasonable attorneys’ fees) arising from or incurred as a result of Licensee’s downloading, installation and/or use of the Software and/or Licensee’s violation of this EULA.
10. Termination. This EULA is effective until terminated. Licensee may terminate this EULA at any time by uninstalling, destroying or returning any and all copies of the Software and related documentation in its possession or under Licensee’s control. This EULA will automatically terminate if Licensee violates any of the terms of the EULA. Upon termination of this EULA, all license rights granted to Licensee shall immediately terminate. However, all other provisions of this EULA shall survive such termination.
11. Confidentiality, Compliance and Privacy Policy. The Licensee is solely responsible for compliance with any applicable laws, regulations and/or obligations to third parties. Licensee’s use of the Software is confidential and subject to Mobidia Privacy Policy as amended from time to time (“Privacy Policy”) which may be found on Mobidia’s website: www.Mobidia.com and applicable to this EULA. Mobidia’s Privacy Policy defines how, why and to which extent Mobidia collects and uses personal and non‐personal information in relation to Mobidia’s products and services. By installing, accessing or using the Mobidia Software or Services Licensee explicitly agrees with the terms and conditions of Mobidia Privacy Policy and to any terms and conditions included therein by reference. The parties wish to enter into this Agreement to provide for mutual contractual obligations of confidentiality. IN CONSIDERATION OF the mutual covenants contained in this Agreement, and for other valuable consideration, the receipt of which is hereby acknowledged by each party, the parties agree that each party who may receive the other’s Confidential Information (the “Recipient”) agrees with the other party who may disclose its own Confidential Information (the “Discloser”) that the Confidential Information of the Discloser is to be considered confidential and proprietary to the Discloser. Each Recipient shall hold the Confidential Information of the Discloser in confidence and shall not use it other than for the purposes of its business with the Discloser. Each Recipient shall not reveal, distribute, disclose or disseminate any Confidential Information of the Discloser in any manner to any person or entity, except to the Recipient's officers, directors and employees who have a specific need to know, who are informed of its confidential nature and of this Agreement, and upon whom the Recipient places obligations of confidentiality at least as stringent as those contained in this Agreement. Without the prior written consent of the other party, each party shall not make any press release or other public utterances of any kind regarding the discussions or information exchange that may take place between them.
12. Miscellaneous. This License shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada. This License constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such matter. No amendment to or modification of this License shall be binding unless in writing and signed by Mobidia.
13. Questions, Comments and Contact Information. Any and all questions, comments, complaints and/or claims should be directed to: feedback@Mobidia.com and Mobidia, Suite 230 ‐ 10451 Shellbridge Way, Richmond, BC, V6X 2W8 Canada.