THIS END-USER LICENSE AGREEMENT (“Agreement”) IS A CONTRACT between AKERU INC, a Washington corporation ("Company") and the individual (“User”) who is (i) installing one or more items of Company software, including for example Company’s Mornings software (each such item is referred to here as "Software"); and/or (ii) subscribing to one or more services made available by Company, under the Mornings brand name or otherwise (each such service is referred to here as a “Service”). All of the foregoing are referred to, individually and collectively, as the “Technology.” (“Mornings" is a registered trademark of Akeru Inc.)
User certifies, under penalty of law, that User is authorized, by the owner of the computer on which the Software is being installed (or by a person having such authorization of the owner), to perform the installation. User specifically agrees not to install the Software on any computer without permission of the owner.
Installing, distributing, or using the Software, accessing the Service, and/or installing a license key, CONFIRMS USER’S AGREEMENT TO BE BOUND by all the terms and conditions of this Agreement. User will be bound, as examples but not limited to, by this Agreement’s provisions concerning:
- restrictions on authorized use
- mandatory automatic updates
- exclusions of warranties and limitations of liability
- mandatory arbitration of disputes
1. License Grant; Authorized Use
- If User is agreeing to this Agreement in conjunction with downloading and installing Software, then User is authorized to use the Software in accordance with this Agreement and the terms stated at the Company Web page at which the Software can be downloaded.
- If User is agreeing to this Agreement in conjunction with signing up to access a Service, then User is authorized to access the Service in accordance with this Agreement and the relevant Company service plan.
- This Agreement applies to all initial copies and licenses of the Software obtained by User as well as to (1) to any updates, patches, new releases, supplements and add-on components of the Software that Company may provide or make available to User after the date User obtains its initial copy of the Software, unless accompanied by separate terms; and (2) to any additional licenses for Software that User might buy or otherwise obtain.
- Any supplemental third-party software that User uses in conjunction with the Technology, whether provided by Company or otherwise, may only be so used so long as User’s use of the supplemental software complies with applicable third-party software licensing terms and conditions, if any.
- The Technology is licensed, not sold. Company or its supplier(s), as applicable, retain title and all ownership rights, of whatever nature, to the Technology and to the tangible copy or copies of the Software. All rights not expressly granted herein are reserved by and to Company or its suppliers, as applicable.
- All licenses for the Technology are non-exclusive.
- Purchased licenses are valid either perpetually or during a specified "License Term."
- Evaluation licenses are valid only for a limited time and/or usage.
- If a license for the Technology expires, User may become unable to view, modify, or delete any content, including User-created content, within the Technology until a new license is acquired, such as through a purchase.
- User may not work around any mechanism that may be built into the Technology (including for example into software installation routines) to enforce time- or usage limitations.
- User may not use the Technology except in accordance with this Agreement, nor permit or assist others to do so.
- (Applicable to installed versions only) User may make a reasonable number of copies of installed-version Software for backup purposes.
- (Applicable to installed versions only) User may make use of licensed Software for reasonable disaster-recovery testing and disaster-recovery operations.
- Except for assignments permitted hereunder, User may not rent, lease, sell, sublicense, assign, or otherwise transfer any Software or license, including the documentation, which remain the confidential property of Company or its suppliers.
- User may not decompile, disassemble, or reverse engineer any Technology or any part of it, nor permit or assist others to do so. If applicable law permits User to engage in such activities notwithstanding this Agreement, User will provide Company with advance notice and reasonably detailed information concerning User’s intended activities. (NOTE: The previous text in this paragraph might not apply to open-source or third-party components utilized in Software or Services. Use of these components, if any, as well as their respective licenses, are acknowledged in the “About” or “Help” topics of the Technology.)
- The License includes a background-rights license under any patent, copyright, trade secret, or trademark right of Company to the extent (and only the extent) necessary for User’s licensed use of the Technology.
- If Company is unable to bill the User for use of the Services for a period exceeding 30 calendar days, Company reserves the right to terminate the User’s account and delete associated User data.
- You must be at least 13 years old to register or use the Services. If User is an individual (as opposed to an organization), User represents that User is at least 13 years old.
2. Information Content; Security
- Company will not claim ownership of any information that User processes, transmits, or stores using the Technology.
- All content and other intellectual property made available to User by Company (other than User's own) is the property of Company or its providers; User may not claim ownership of any of it.
- In Company’s sole discretion, and without obligation of any kind to User, Company may use or disclose, as Company sees fit, any suggestions, comments, feedback, ideas, or other input submitted by User. Without limiting the previous sentence, Company will not owe User any financial compensation for using any such input.
- As between User and Company, User is solely responsible for the content of any information that User may process, transmit, or store using the Technology; User acknowledges and agrees that Company has no duty to monitor or regulate any such content and no responsibility or liability for it. However, Company reserves the right to, in its sole discretion, pre-screen, modify, move, remove or block access to any content that User processes, transmits, or stores using the Technology in violation of this Agreement.
- As between User and any individual who accesses the Technology via a User account (for example, if User is a company or other organization and the individual is an authorized employee of that organization), all User information is owned by User and not by that individual.
- Company will endeavor to keep the help features of its Web site up to date with respect to specific features of the Technology, but User acknowledges that the information might not always be up to date.
- IF: Company receives a subpoena, search warrant, or other official request for information that User has provided; THEN: Company will:
- endeavor to promptly report the demand to User, subject to any applicable legal restrictions on such reporting; and
- provide reasonable cooperation with any efforts User might make, at User's request and expense, to limit the disclosure and/or to obtain legal protection for the information to be disclosed.
- User agrees to notify Company promptly if User suspects that someone else has obtained access to User’s login ID or password, or that a breach of security for any aspect of the Technology has occurred, is about to occur, or is being planned.
- Company reserves the right to suspend an individual user's access to a User business account if requested by an officer or comparable official of User.
- If User uses a local-storage option of the Technology (if any), User should be sure to make regular backups of the data that it stores locally. In addition to the warranty disclaimer and limitations of liability of this Agreement, then Company WILL NOT BE LIABLE for any harm arising from damage to User's locally-stored data, even if caused by the Technology (e.g., by a software error in the server(s) providing the Service or in Software such as a browser plug-in), to the extent that the harm could have been prevented or mitigated by prudent precautions such as, for example, regular backups.
3. Use Restrictions
- Wherever this Agreement prohibits or restricts User from doing something, User is also prohibited or restricted from attempting to do it and from inducing, soliciting, permitting, or knowingly assisting anyone else to do so, whether for User's benefit or otherwise.
- User may not resell access to the Technology to anyone else except to the extent, if any, permitted by the applicable service plan.
- User may not knowingly let anyone access or use the Technology except authorized users.
- User may not make or distribute copies of, or create derivative works based on, any content provided via the Technology, other than User's own content or as expressly authorized in writing by Company or other owner of the content.
- Without limiting User's other obligations under this Agreement, User may not use the Technology in an unreasonable manner. For purposes of illustration, an agreed, non-exhaustive list of actions that are conclusively deemed to be unreasonable is set forth below:
- interfering with others' use of the Technology.
- using the Technology for any unlawful purpose.
- accessing, tracing, or transmitting anyone else's information without proper authorization, including but not limited to personal identifying information and financial information.
- using someone else’s user name and password to access the Technology.
- probing or attempting to breach the security measures of the Technology or any network associated with it.
- taking any action that unreasonably burdens the Technology, any network associated with it, or any other network associated with Company. This may include, for example (but not as a limitation), bandwidth usage that Company judges to be excessive.
- engaging in “spoofing,” for example, disguising the origin of any transmission User sends to Company via the Technology or any network associated with it.
- using a bot, screen scraper, Web crawler, or any other method to access the Technology or any content stored at the Technology, other than the user interface provided by Company.
- impersonating anyone in connection with the Technology.
- pretending to represent another individual or entity in connection with the Technology.
- infringing someone’s copyright, trademark, trade secret, or other intellectual property right in connection with User's use of the Technology.
- exporting or re-exporting goods or technical data in violation of law.
- using the Technology to transmit or store any of the following:
- viruses, Trojan horses, bots, crawlers, keystroke recorders, or other malware of any kind;
- information owned by someone else without their permission;
- information used or intended to be used in any unlawful manner, in connection with any unlawful purpose, or in any manner that could expose Company to a risk of liability, or that is otherwise objectionable;
- information that violates any other acceptable-usage policy that Company may publish from time to time (Company will give User notice if it does so).
4. Mandatory automatic updates
- As many software publishers do, Company may continue to improve the Software even after a User’s purchase or download, and to periodically provide free updates for the Software.
5. WARRANTY DISCLAIMER; LIMITATION OF REMEDIES
- The Software and the Service are each offered and provided AS-IS, WITH ALL FAULTS; on behalf of Company and its suppliers, to the maximum extent permitted by law, Company DISCLAIMS ANY AND ALL WARRANTIES, DUTIES, CONDITIONS, REPRESENTATIONS, AND TERMS OF QUALITY (express or implied, oral or written), with respect to the Software, the Service, or any part of either.
- The disclaimer of subdivision (a) extends, without limitation, to any warranties, duties, conditions, representations, and terms of quality, whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing, concerning any of the following: Title, non-infringement, and quiet enjoyment; merchantability; fitness or suitability for any purpose (whether or not Company or any of its suppliers know, have reason to know, have been advised, or are otherwise in fact aware of any such purpose); absence of viruses; results; and workmanlike effort.
- Company DOES NOT WARRANT that the Technology will be error-free, will meet User’s needs, or will operate without interruption.
- Company DOES NOT WARRANT that the Technology will perform as documented in cases of hardware malfunction; unavailability of Internet access or of third-party services; misuse of the Technology, modification of the Technology by any party other than Company (the foregoing is not to be construed as granting User the right to make or have made any such modification); use of the Technology in an environment or with other software not described in the documentation or supported by Company; or bugs in other software with which the Technology interacts.
- Except to the extent (if any) explicitly stated otherwise in this Agreement or explicitly agreed otherwise in writing by Company, THE TECHNOLOGY IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, including but not limited to any application in which the failure of the Technology could lead directly to death, personal injury, or severe physical or property damage.
- To the greatest extent permitted by law, except as set out below, NEITHER Company nor its subsidiaries, parent company, or affiliates, nor the employees, officers, directors, shareholders, or members of any of them, if any, WILL BE LIABLE TO USER or any person claiming through User, in contract, tort, strict liability, or otherwise, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES, arising from or relating to any alleged or actual breach of this Agreement or from the use of, the results of the use of, or the inability to use the Technology, including, as examples but not limitations, lost profits or other economic loss, loss of privacy, loss of confidential information, arising from the use of, the results of the use of, or the inability to use the Technology.
- To the greatest extent not prohibited by law, THE MAXIMUM AGGREGATE LIABILITY of Company and its suppliers, subsidiaries, parent company, or affiliates, if any, and their employees, officers, directors, shareholders, and members, to User, or to any person claiming rights through User, in respect of any and all claims arising from or related to this Agreement, in contract, tort, or otherwise, will be USD $5.00 or the amount paid for the License, whichever is less.
- Each remedy limitation in this section 5 is to be enforced to the maximum extent permitted by law, independently of any other applicable remedy limitation, even if any particular remedy is held to have failed of its essential purpose, and also independently of the warranty-disclaimer provisions of this Agreement. User acknowledges that otherwise Company would not have granted the license on the economic terms associated with such grant.
- Some jurisdictions do not permit limitation or exclusion of remedies under some circumstances, so some or all of the foregoing limitations may not apply to User.
6. Governing Law; Arbitration
- All disputes arising out of or relating to this Agreement or the interpretation, validity, or enforceability thereof will be governed by the laws of the United States of America and the State of Washington as though this Agreement had been made and performed in that state by its residents, without regard to conflicts of law rules.
- The parties exclude the application of (i) the United Nations Convention on Contracts for the International Sale of Goods; (ii) the Uniform Computer Information Transactions Act ("UCITA"); and (iii) the American Law Institute's Principles of the Law of Software Contracts.
- Upon written demand by either party, any and all disputes arising out of or relating to this Agreement or any transaction or relationship resulting from it (each, an “Arbitrable Dispute”) are to be finally resolved by English-language arbitration before a single arbitrator in accordance with (i) the arbitration provisions of this Agreement; (ii) the U.S. Federal Arbitration Act; and (iii) the Commercial Arbitration Rules of the American Arbitration Association, to the extent those rules are not inconsistent with the arbitration provisions of this Agreement.
- The arbitration provisions of this Agreement apply to any Arbitrable Dispute regardless whether it arises under, for example: (i) common law, whether of contracts, torts, strict liability, or otherwise; (ii) a constitution, statute, or regulation (for example, state- or federal anti-discrimination statutes); or (iii) any other legal doctrine or principle (including, for example, intellectual-property disputes).
- For the avoidance of doubt, any dispute about the arbitrability of another dispute is itself to be arbitrated.
- The arbitrator will have no power to resolve claims by a party purporting to act (i) as a representative member of a class; or (ii) in a capacity of private attorney general.
7. Export Controls
- User agrees that it will not transfer any aspect of the Technology, nor any other software or documentation provided by Company, except in compliance with U.S. export-control regulations or other applicable export laws. (NOTE: transfer or disclosure to a non-U.S. citizen may constitute an ‘export’ even if occurring within the U.S.) For example, User will not export or re-export any of the foregoing:
- to any person on a government-promulgated export restriction list; or
- to any U.S.-embargoed countries
- User represents and warrants that:
- User is not listed in any export restriction list;
- User is not a citizen or resident of any U.S.-embargoed country;
- User has not had its export privileges suspended, revoked, or denied by a governmental authority having jurisdiction.
- If Company so requests, User will sign written assurances and other export-related documents as may be required to comply with applicable export laws.
8. U.S. Government
The Software and its accompanying documentation are "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the United States Government are to be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
9. Savings Clause
If any provision of this Agreement is held to be invalid, void, unenforceable, or otherwise defective by a court or other tribunal of competent jurisdiction, then (i) all other provisions will remain enforceable, and (ii) such provision will be deemed modified to the minimum extent necessary to cure the defect.
10. Exclusive Agreement; Amendments
- This Agreement is the parties' final, complete, exclusive, and binding statement of the terms and conditions of their agreement concerning its subject matter. Each party represents and warrants that, in entering into this Agreement, that party is not relying on any promises, warranties, or representations by the other party that are not stated in (or expressly incorporated by reference into) this Agreement.
- Except as provided in subdivision (c), this Agreement may be amended only by a writing that so states and is signed by the parties; each party agrees not to assert otherwise in any forum.
- From time to time, Company may unilaterally amend the provisions of this Agreement that apply to the Service, on a going-forward basis, by giving User notice to that effect. Any such unilateral amendment will take effect automatically at the end of 30 days after notice unless, before that time, User terminates User’s subscription to the Service by giving notice to Company, in which case upon written request by User, Company will refund a pro-rata portion of the fee paid by User (if any) for the then-current Service Term.
- If User provides Company (or previously provided Company) or Reseller (if applicable) with a purchase order or similar document, any terms, conditions, or provisions appearing therein (other than as to identification of the Software and of the number and types of licenses, and optionally of any maintenance or any training or consulting services being purchased) will be given effect if and only if the purchase order meets the amendment requirements of this "Exclusive Agreement; Amendments" section.
- NO VENDOR, distributor, reseller, dealer, retailer, or other person (other than an authorized officer of Company) is authorized to modify this Agreement nor to make any warranty, representation or promise that is different than, or in addition to, the representations and promises of this Agreement.
- Company reserves the right to modify the Technology; to offer new service plans and discontinue existing ones; and to modify its pricing.
By express agreement of the parties, this Agreement is written in and shall be interpreted for all purposes in accordance with the English language as used in the United States of America. (French translation of the previous sentence: Les parties conviennent expresssément que le présent Accord ainsi que toutes ses annexes seront rédigés en langue Anglaise et interprétés par référence à la terminologie utilisée aux Etats-Unis.)
Except as expressly provided otherwise herein, waivers concerning this Agreement must be in express, signed writings. Each party agrees not to assert a waiver that does not comply with the previous sentence.
13. DMCA Address
Company’s address for notices under the (U.S.) Digital Millennium Copyright Act (DMCA) is firstname.lastname@example.org.
14. Beta Testing
If the parties agree that User will be a beta tester of one or more items of Technology (“Beta Technology”), then:
- User’s license to use the Beta Technology will be a limited-time evaluation license, after the expiration of which the Beta Technology will stop functioning;
- User will advise Company of any problems that User encounters in using the Beta Technology.
- User will provide Company with reasonable information about the performance of the Beta Technology upon request.
- User may not, without Company’s prior written consent, disclose any information about the Software, its design and performance specifications, its code, or the existence of the beta test and its results to anyone other than User’s employees who are performing the testing; and
- The test period will last from the date Company makes the Beta Technology accessible to User until Company gives User notice that the testing period is ending.
- User’s right to use the Beta Technology will end at the end of the testing period or when Company asks User to discontinue use of the Beta Technology, whichever occurs first.
- Upon the conclusion of the testing period or at Company’s request, User will promptly destroy the original and all copies of any software elements of the Beta Technology.
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