This End User License Agreement (this “Agreement”) is a binding agreement between 911inform LLC (“911inform” or “Licensor”) and the person or entity (“Licensee”) using the Software and/or the Documentation obtained from Licensor or a 911inform Representative (as defined below).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY USING THE SOFTWARE AND/OR THE DOCUMENTATION, OR AUTHORIZING OTHERS TO DO SO, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT THIS AGREEMENT IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE LICENSEE ENFORCEABLE IN ACCORDANCE WITH ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, LICENSEE HAS FULL POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND LICENSEE MUST NOT USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE OR ACCESS LAWFULLY.
“911inform Representative” means a 911inform reseller, distributor, system integrator, service provider or any other Person (as defined below) authorized to provide Software in the applicable territory.
“Authorized Users” means individual persons authorized to use the Software pursuant to the license granted under this Agreement.
“Documentation” means user manuals, handbooks, guides and end user documentation and any other materials provided by Licensor, in printed, electronic, or other form, that describe the operation, use, or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“License Key” means a unique key-code provided by Licensor or a 911inform Representative to Licensee via e-mail that enables the Licensee to use the Software.
“Licensor” has the meaning set forth in the preamble.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“RapidSOS” means RapidSOS, Inc.
“RapidSOS Services” means programs, platforms, or other products or services of RapidSOS, including RapidSOS’s clearinghouse and portal that provides location data, and transmits and otherwise makes available supplemental emergency data.
“Software” means the software programs provided by Licensor or a 911inform Representative, whether as stand-alone products or pre-installed on hardware products, and any upgrades, updates, patches, bug fixes, or modified versions thereto.
“Software Warranty Period” has the meaning set forth in Section 10(a).
“Term” has the meaning set forth in Section 9.
“Third Party” means any Person other than Licensee or Licensor.
“Updates” has the meaning set forth in Section 6(b).
(a) Use each License Key on one designated computer owned or leased, and controlled by, Licensee. Each such computer shall be for a single Authorized User.
(b) Use and run the Software in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
(c) Make one (1) copy of the Documentation for the Software permitted to be used in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee: (i) will be the exclusive property of Licensor; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
(a) Subject to Section 6(c), the license granted hereunder entitles Licensee to the basic software maintenance and support services Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services during the Term. Additional and/or enhanced maintenance services are available pursuant to a separate post-warranty maintenance agreement provided by Licensor or a 911inform Representative commencing after the one (1) year anniversary of the license granted hereunder.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates“) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.
(c) Licensor has no obligation to provide maintenance and support services: (i) if Licensee is in breach under this Agreement; or (ii) for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Licensor in writing.
(a) Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is accessed and used, through the provision of maintenance and support services.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to (i) improving the performance of the Software or developing Updates; and (ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
(a) This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term“):
(i) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
(ii) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee breaches this Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.
(iii) Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(iv) This Agreement shall terminate upon the termination of the definitive agreement between Licensee, on the one hand, and Licensor or a 911inform Representative, on the other hand, pursuant to which the Software and Documentation were made available to Licensee.
(v) This Agreement shall terminate upon the termination of Licensor’s license under that certain RapidSOS Master Service Agreement between RapidSOS and Licensor, effective as of August 26, 2019, as such agreement may be amended or replaced from time to time.
(b) Upon termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such termination, or entitle Licensee to any refund.
(a) Licensor warrants that the Software will perform materially as described in the Documentation for a period of twelve (12) months following Licensor’s delivery of a License Key (the “Software Warranty Period”). The warranty set forth in this Section 10(a) does not apply and becomes null and void if Licensee breaches any provision of this Agreement, or if Licensee or any other person provided access to the Software whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software that is not specified in the Documentation or expressly authorized by Licensor in writing; or (ii) modifies, damages, neglects, misuses, or abuses the Software, including any use of the Software other than as specified in the Documentation or expressly permitted in this Agreement, or expressly authorized by Licensor in writing. If, during the Software Warranty Period, the Software fails to comply with the foregoing warranty, and such failure is not excluded from warranty pursuant to this Section 10(a), Licensor shall, subject to Licensee promptly notifying Licensor in writing of such failure, at Licensor’s sole option, either: (i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable Licensor to recreate such failure; or (ii) refund the fees paid for such Software, subject to Licensee ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. If Licensor repairs or replaces the Software, the warranty will continue to run from the beginning of the Software Warranty Period and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 10(a) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in this Section 10(a).
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES (OTHER THAN COMPATIBILITY WITH RAPIDSOS SERVICES), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
WITHOUT LIMITING THE FOREGOING, LICENSEE ACKNOWLEDGES THAT LICENSOR IS NOT THE ORIGINATOR OF THE LOCATION DATA USED IN THE SOFTWARE AND SUCH LOCATION DATA HAS BEEN PRODUCED, COLLECTED AND PROCESSED FROM VARIOUS THIRD-PARTY DATA LOCATION SOURCES (INCLUDING GOOGLE EARTH). THE ACCURACY OR RELIABILITY OF SUCH LOCATION DATA IS NOT GUARANTEED OR WARRANTED IN ANY WAY AND LICENSOR DISCLAIMS LIABILITY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR QUALITY, PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARISING OUT OF THE USE, OR INABILITY TO USE SUCH LOCATION DATA.
(c) Licensee acknowledges that the Software and any Licensor product of which it is a part is merely one component of an emergency response system and should not be relied upon to the exclusion of any other precautions, safeguards, training, systems, equipment, products or services that may enhance the safety of Licensee and its employees, guests, invitees and other third parties for whom Licensee may be responsible.
(a) IN NO EVENT WILL LICENSOR OR A 911INFORM REPRESENTATIVE OR THEIR RESPECTIVE AFFILIATES, OR ANY OF THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR OR A 911INFORM REPRESENTATIVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR’S OR A 911INFORM REPRESENTATIVE’S AND THEIR RESPECTIVE AFFILIATES’, INCLUDING ANY OF THEIR RESPECTIVE LICENSORS’, SERVICE PROVIDERS’, DIRECTORS’, OFFICERS’, EMPLOYEES’ AND AGENTS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LICENSOR OR A 911INFORM REPRESENTATIVE, AS APPLICABLE, FOR (i) THE SOFTWARE OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted only in a federal or state court located in the State of New Jersey, and each party irrevocably submits to the personal jurisdiction of such courts and waivers all defenses thereto, including any defenses based upon the inconvenience of the forum. THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY DISPUTES ARISING FROM OR RELATING TO THIS AGREEMENT.
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder, by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, quarantine, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, inability to secure materials and transportation facilities, supplier failures or delays due to industry conditions (e.g., shortages or allocations), intervention of any governmental authority or any other circumstances or causes beyond Licensor’s reasonable control.
(c) This Agreement and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(d) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14(d) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Licensee must ensure that any third parties using the Software on Licensee’s behalf bring all claims related to the Software to Licensee and waive all claims directly against Licensor related to those claims.
(f) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refer to the Sections of this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(i) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.