End User License Agreement
SmartOS Software License
SMARTRG END USER LICENSE AGREEMENT
READ CAREFULLY. THIS END-USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (“LICENSEE’, “YOU,” OR “YOUR”) AND SMARTRG INC. (“SMARTRG,” “WE,” “US,” OR “OUR”) AND GOVERNS YOUR USE OF SMART/RG® COMPUTER PROGRAMS, INCLUDING WITHOUT LIMITATION SMART/OSTM (COLLECTIVELY, THE “SOFTWARE”). ACCESSING, INSTALLING OR USING THE SOFTWARE CONSTITUTES YOUR AND YOUR COMPANY’S ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL TERMS, YOU MAY NOT DOWNLOAD, ACCESS, USE OR INTERACT WITH THE SOFTWARE AND/OR YOU MUST RETURN THIS PRODUCT, ALL MANUALS AND DOCUMENTATION, AND PROOF OF PAYMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF SMARTRG, INC. SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF YOU HAVE ORDERED THIS PRODUCT, SMARTRG’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.
- Scope. You may have another written agreement directly with SmartRG (e.g., a volume license agreement) that supplements or supersedes all or portions of this Agreement, in which case the written executed contract shall control over the terms of this Agreement.
- License Grant. Subject to the terms and conditions of this Agreement, SmartRG hereby grants to you a limited, revocable, non-exclusive, nontransferable, nonsublicenseable license to download, install, use, and display the Software solely in object code form and as such Software is embedded in equipment or installed on devices, for your personal, non-commercial use in accordance with this Agreement. This license does not allow you to use or display the Software on any device that you do not own or control, and you may not distribute or make the software available over a network where it could be used by more than one device at the same time. The Software is provided solely as a tool to view and manage your wireless device settings.
- License Restrictions. Licensee may not, directly or indirectly: (a) modify, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or the underlying ideas or algorithms of the Software, except to the extent applicable statutory law expressly prohibits such restrictions; (b) create derivative works based on the Software; (c) use the Software for performing comparisons or other "benchmarking" activities; (d) copy, rent, lease, distribute, or otherwise transfer rights to the Software; or (e) remove any proprietary notices or labels on the Software. If You breach this restriction, You may be subject to prosecution and damages. The terms of this Agreement govern any upgrades provided by SmartRG or by its licensors that replace and/or supplement the original Software, unless such upgrade is accompanied by a superseding license in which case the terms of that license will govern. In addition, when using any particular functionalities and features that are part of the Software, You may be subject to additional guidelines, terms, or rules applicable to such functionalities and features (“Additional Terms”), which may be posted from time to time and are hereby incorporated by reference into this Agreement.
- Third Party Software. The Software may contain or be delivered with certain third party software (“Third Party Software”) that is not licensed pursuant to the provisions set forth herein. You shall have only such rights and/or licenses, if any, to use the Third Party Software as are set forth in the terms available with the SmartRG product documentation. Third Party Software includes any Open Source Software (as this term is commonly understood in the industry) that may be contained in the Software. Nothing in this Agreement limits Your rights under, or grants You rights that supersede, any Open Source Software license. You acknowledge that the Third Party Software licenses are solely between You and the applicable licensor. SmartRG will have no obligation whatsoever under this Agreement to support or maintain any such Third Party Software, nor will SmartRG have any liability under this Agreement, regardless of the nature of the claim or the nature of the claimed or alleged damages, including, without limitation, direct, indirect, incidental, consequential, or punitive damages, for any claim arising from or related to Licensee’s use or distribution of the Third Party Software, and SmartRG disclaims any and all representations and warranties, express, implied or statutory, with respect to any and all such Third Party Software, including without limitation, any warranties of merchantability, fitness for a particular purpose, system integration, data accuracy, title, non-infringement, quiet enjoyment, and/or non-interference. Licensee acknowledges and agrees that the foregoing disclaimers, limitations and exclusions of liability form an essential basis of the bargain between the parties, and that, absent such disclaimers, limitations and exclusions, the terms of this Agreement, including, without limitation, any economic terms, would be substantially different.
- Other Controlling Terms. You acknowledge and agree that Your use of the Software may be subject to additional terms and conditions of the device manufacturer, provider or carrier for the Device on which You download, access or use the Software, which are not governed by this Agreement. You agree not to use the Software in any manner that violates this Agreement or any applicable terms herein. It is also a violation of these rules to use any information obtained from or through the Software in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any person without their prior explicit consent.
- Ownership. The Software is licensed to You, not sold. As between the Parties, SmartRG (and its licensors) own and retain all proprietary rights in the Software (including all upgrades thereto), subject to the licenses granted to You. The Software contains the copyrighted material, trademarks, and other proprietary information (“Intellectual Property”) of SmartRG and may include trademarks of SmartRG. There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved. You agree that any questions, comments, suggestions or the like other than personally identifiable information (collectively, the “Feedback”) sent to SmartRG, shall become the sole property of SmartRG, which may choose to share it with its business partners. You further agree that SmartRG shall be free to use and exploit in any manner any ideas, concepts, know-how or techniques contained in such Feedback for any purpose without Your or a third party’s consent, and without payment of any consideration to You or a third party, You hereby assign all rights, title and interest in such Feedback to SmartRG, as applicable.
- Maintenance and Support. You agree and acknowledge that SmartRG will have no duty under this Agreement to provide technical support or maintenance of any kind with respect to the Software and that it reserves the right for such support services, if any, to be performed solely pursuant to a separate written contract. SmartRG may choose to offer at its option, but is not obligated to provide, some basic support that may include email support, upgrades, updates or bug fixes.
- Aggregated and Anonymous Data. You agree that SmartRG (and its licensors) may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Software. SmartRG may use this information, as long as it is in a form that does not personally identify You, for the improvement of the products or to provide services or technologies to You. You agree that SmartRG (and their representatives) may access Your account and records to investigate complaints or allegations of abuse, infringement of third party rights, or violations of this Agreement.
- Termination. The license is effective until terminated by You or SmartRG. Your rights under this license will terminate automatically without notice from SmartRG if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Software, and destroy all copies, full or partial, of the Software, and/or delete or uninstall the Software from Your Device.
- Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED WITH THE SOFTWARE (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SMARTRG HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, 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 FREEDOM FROM PATENT INFRINGEMENT OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SMARTRG DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMARTRG OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME 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 LIMITATIONS MAY NOT APPLY TO YOU.
- Assumption of Risk. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND YOU ALSO ACKNOWLEDGE THAT WHILE ACCESSING ANY INFORMATION USING THE SOFTWARE YOU WILL BE SOLELY RESPONSIBLE FOR HOW YOU PROTECT THE PRIVACY OF SUCH INFORMATION FROM THIRD PARTIES, INCLUDING THE INPUT OF YOUR LOG-IN INFORMATION AND WHETHER OR NOT YOU LOG OUT AFTER USING IT.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SMARTRG BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SMARTRG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall SmartRG’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
- Indemnity. You agree to indemnify and hold SmartRG, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of Your use of the Software in violation of this Agreement and/or arising from a breach of this Agreement by You.
- Export Controls. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
- Government Acquisitions. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- Governing Law. The laws of the State of Washington, excluding its conflicts of law rules, govern this license and Your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws. The parties agree that the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties’ relationship.
- General Provisions. You are responsible for compliance with applicable local laws. This Agreement is personal to You, and You may not transfer, assign or delegate this Agreement to anyone without the express written permission of SmartRG. Any attempt by You to assign, transfer or delegate this Agreement without the express written permission of SmartRG shall be null and void. You acknowledge that SmartRG will have the right hereunder to so seek an injunction, if necessary to stop or prevent a breach of Your obligations hereunder. The paragraph headings in this Agreement are included only to help make the agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us shall have effect unless such waiver is set forth in writing, signed by us; nor shall any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between You and SmartRG with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. We may modify this Agreement at any time, and such modifications shall be effective immediately upon either posting of the modified agreement or notifying You. You agree to review this Agreement periodically to be aware of such modifications and Your continued use of the Software shall indicate Your acceptance of the modified Agreement.