END USER LICENSE AGREEMENT
Last Revised: October 27, 2020 Ver: 01027
This End User License Agreement (the “Agreement”) is a contract between you (“you” or “your” (whether capitalized or not)) and CIS Maxwell, LLC (d/b/a CIS Mobile) (“CIS Mobile”), for your use of CIS Mobile’s altOS Software to the extent it is licensed to you under the Commercial Agreement (the “Software”). The term “you” also includes Authorized Users.
PLEASE READ THIS AGREEMENT CAREFULLY. CIS MOBILE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR BOX OR OTHER MEANS PROVIDED FOR ACCEPTANCE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY WHO ENTERED INTO THE COMMERCIAL AGREEMENT WITH CIS MOBILE OR ITS PARTNER AND BIND SUCH PARTY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CIS MOBILE WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR 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 YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF CIS MOBILE’S SOFTWARE.
- Capitalized terms used in this Agreement shall have the meaning set forth in this Section 1:
“Authorized User” means any individual person who is licensed to use the Software and who is designated by you as being entitled to use the Software.
“Charges” means the subscription or licensing fees and other charges paid by Commercial Party to CIS Mobile or its Partner for use of the Software under the Commercial Agreement.
“Documentation” means user manuals, technical manuals, and any other materials provided by CIS Mobile, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Commercial Agreement” means the agreement entered into between the Commercial Party and CIS Mobile or its Partner that covers, among other things, the commercial terms of the use of the Software including, but not limited to, the Charges.
“Commercial Party” means the party that paid or pays the Charges that enables your use of the Software, typically your employer.
“Hosted Services” means online hosting services, owned, operated or controlled by CIS Mobile consisting of various infrastructure components, including but not limited to servers, networking components, system software, and internet access all as more specifically defined in the specifications found in the Commercial Agreement.
“Mobile Device” means a mobile device and enhancements associated therewith that is technically and operationally compatible with the Software.
“Partner” means the party that receives the Charges from the Commercial Party and entered into the Commercial Agreement with the Commercial Party if the Commercial Party did not contract directly with CIS Mobile under the Commercial Agreement.
- License Conditioned Upon Agreement To Terms. CIS Mobile’s grant to you of the licenses to use the Software is conditioned upon your agreement to the terms and conditions set forth in this Agreement.
- Software Not Error-Free. You acknowledge that the Software may be interrupted from time to time. You further acknowledge that the Software are not error-free. CIS Mobile cannot accept any responsibility under this Agreement for the functioning of your wireless device with respect to the Software.
- Suspension of Use. CIS Mobile will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by you, or any individual under your control, in their use of the Software, to suspend access by you to the Software.
- License Grant.
- Software License Grant for Mobile Devices. If so specified in the Commercial Agreement, CIS Mobile grants you, subject to payment of the Charges, a limited, nontransferable (except for Intra-Account Transfers), nonexclusive, revocable (upon your uncured breach of this Agreement) license to use, execute, and copy the Software for Mobile Devices (but not create derivative works thereof) on the number of Mobile Devices set forth in the Commercial Agreement (“Mobile Device Software License”). Mobile Device Software Licenses may be moved from one Mobile Device to another Mobile Device under Commercial Party’s account, provided that the same Mobile Device Software License may not be used on more than one Mobile Device at a time (an “Intra-Account Transfer”).
- Hosted Access Grant for altOS. If so specified in the Commercial Agreement, CIS Mobile grants you, subject to your payment of the Charges for the Hosted Services, a limited, nontransferable, nonexclusive license access the altOS Server Software that is operated on computers or servers owned or controlled by CIS Mobile (“Hosted altOS License”).
- Limitations on Use. No license is given to you to the source code to the Software. Without the express written authorization from CIS Mobile, you shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Software (including the Documentation) for any purpose other than as specified in this Agreement or the Commercial Agreement; (ii) decompile, disassemble, re-program, analyze, reverse engineer any of the Software (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) except as expressly authorized herein or the Commercial Agreement, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Software; (iv) use the Software to create a service bureau, timesharing arrangement, or application service provider; (v) modify, adapt, translate, prepare derivative works of all or any portion of the Software or attempt to do so; (vi) remove, obscure or alter CIS Mobile’s product identification, copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Software or Documentation; (vii) permit the Software to be used, examined, reviewed or inspected by others; (viii) disclose the results of any benchmark or evaluation of the Software to any third party (whether or not obtained with CIS Mobile’s assistance) without CIS Mobile’s prior express written consent; (ix) use the Software, Documentation or any information contained therein or otherwise provided by CIS Mobile for the purposes of developing, or having developed, any software, products or services competitive with the Software; (x) incorporate, link, or distribute the Software with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. You shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities, or attempting to do so. Should it become known to you that an Authorized User has attempted to do any of the aforementioned activities, you shall immediately notify CIS Mobile and direct such Authorized User to cease and desist in the activity.
- Open Source. The Mobile Device Software contains certain Open Source Software referenced in Schedule A (Open Source Software). Usage of the Mobile Device Software by you is subject to certain rights and responsibilities with respect to the Open Source Software and is governed according to the terms of the applicable Open Source License referenced in Schedule A. “Open Source Software” means software made available to others under the terms of an Open Source License; “Open Source License” means a software license that includes, but is not limited to, terms that: (a) permit distribution or redistribution of the software, including free of charge and for sale, by others without royalty or fee and allows for such distribution/redistribution to include source code and compiled code; (b) permits modifications, compilations, and derived works be created from the software and be distributed under the same terms as the original software; or (c) attach to the software and applies to all persons, entities, groups, organizations and institutions (the “Recipients”) to whom the software is distributed and/or who redistribute the software without the need for the Recipients to execute or otherwise acquire an additional license. In the event of any conflict between this Agreement and any Open Source License, the Open Source License controls. The licensors of certain Open Source Software may provide certain notices in documentation, readme files or notice files in connection with such Open Source Software.
- Compliance with Third Party Applications. Use of the Software requires that you or the Commercial Party license and install certain third party applications as more specifically set forth in Schedule B (Required Third Party Applications) and in the Commercial Agreement (“Third Party Applications”). You shall comply with all licensing and other requirements provided by the licensor of the Third Party Applications (“Third Party Providers”). Any violation of any Third Party Applications licensing or other agreement shall constitute a material breach of this Agreement.
- Compliance With Laws. You agree to abide by all laws and regulations applicable to the Software and this Agreement.
- Use By Authorized Users. You will ensure that each Authorized User complies with the terms of this Agreement and the Documentation, as may be amended, and any instruction issued by CIS Mobile with respect to the use of the Software.
- No Maintenance and Support. This Agreement confers no maintenance or support obligations upon CIS Mobile. Any maintenance or support that may be available to you, if any, may be provided under the terms of the Commercial Agreement.
- CIS Mobile Intellectual Property Rights. You acknowledge that the intellectual property rights underlying the Software, and Documentation (collectively, the “CIS Mobile IP”) is owned by, and shall remain the sole property of CIS Mobile, that the CIS Mobile IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by CIS Mobile, and that CIS Mobile shall continue to be the sole owner of all Intellectual Property Rights in and to the CIS Mobile IP worldwide including, without limitation, any derivative works. This Agreement does not convey to you title or ownership of the Intellectual Property Rights underlying the CIS Mobile IP, but only a right of limited use in accordance with this Agreement. You acknowledge that the CIS Mobile IP provided by CIS Mobile pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitutes valuable assets, trade secrets and proprietary rights of CIS Mobile.
- DISCLAIMER OF WARRANTY. SUBJECT ONLY TO ANY WARRANTY RIGHTS THAT YOU MAY HAVE UNDER THE COMMERCIAL AGREEMENT, CIS MOBILE DOES NOT MAKE ANY WARRANTIES, TERMS, REPRESENTATIONS OR STATEMENTS WHATSOEVER WHETHER EXPRESSED OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, AND NON-INFRINGEMENT, OF MERCHANTABILITY OR QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT THE SOFTWARE IS ACCURATE OR COMPLETE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. CIS MOBILE MAKES NO REPRESENTATION OF ANY KIND 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, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. YOU AGREE THAT NO COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE SHALL APPLY TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOUR ONLY REMEDIES IN RESPECT OF ANY CLAIMS WHATSOEVER THAT YOU MAY WISH TO BRING AGAINST CIS MOBILE ARE AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
- LIMITATION OF LIABILITY. CIS MOBILE OR ANY THIRD PARTY SUPPLIER SHALL, UNDER NO CIRCUMSTANCES, HAVE ANY LIABILITY WHATSOEVER TO YOU OR ANY AUTHORIZED USERS FOR:
- ANY INDIRECT OR CONSEQUENTIAL LOSS OR ANY LOSS OF ACTUAL OR ANTICIPATED PROFIT, REVENUE OR GOODWILL OR LOSS OF USE OF THE SOFTWARE BY YOU OR FOR ANY OF YOUR LIABILITY TO ANY OTHER PARTY OF WHATEVER KIND HOWSOEVER ARISING (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS, 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; OR CLAIMS FOR DAMAGES OR AWARDS OR OTHERWISE); OR
- ANY OTHER LOSS OR DAMAGE SUFFERED BY YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND WHETHER AS A RESULT OF NEGLIGENCE OR OTHERWISE) EXCEPT TO THE EXTENT OF AN AMOUNT EQUAL TO THE ANNUAL RATE OF THE CHARGES FOR THE SOFTWARE AS OF THE DATE THE CLAIM ARISES WITH RESPECT TO ANY ONE EVENT OR SERIES OF TWO OR MORE CONNECTED EVENTS.
- This provision does not apply to the United States Government. You undertake to indemnify and hold CIS Mobile, suppliers, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Software (collectively the “Indemnified Parties”) harmless from and against all damages, cost, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with your use of the Software (unless such claim stems from CIS Mobile’s breach of this Agreement).
- Termination. CIS Mobile may terminate this Agreement:
- with immediate effect by written notice given by CIS Mobile if CIS Mobile’s agreement with a supplier of the Software are terminated or restricted for any reason; or
- with immediate effect by written notice given by CIS Mobile if you commit any material breach of any term of this Agreement that (in the case of a breach capable of being remedied) shall not have been remedied within five (5) business days of a written request to remedy same.
- Upon Termination. Upon expiration or termination of this Agreement in whole or in part, all right to use the Software ceases, you must uninstall and delete all components of the Software supplied and, if requested by CIS Mobile, certify to CIS Mobile that such deletion occurred.
- This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred by you without the prior written consent of the CIS Mobile. Any attempted assignment, delegation, sublicense or transfer by you without such written consent shall be void and of no effect. CIS Mobile shall be free to assign its rights and obligations hereunder.
- Export Regulation. The Software and Documentation are subject to United States export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the United States.
- Force Majeure. CIS Mobile shall not be liable to you or shall not be subject to termination of this Agreement for any delay, nonperformance, loss or damage because of reasons beyond CIS Mobile’s reasonable control including, but not limited to, acts of God, natural casualties, acts of government, floods, fires, earthquakes, pandemic outbreaks, civil unrest, acts of terror, labor or material shortages, strikes, communication systems failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, or transportation conditions or other causes beyond the reasonable control of the respective party or not anticipated by the respective party in its business judgment (each a “Force Majeure Event”).
- US Government Rights. The Software are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are a US Government employee or any contractor therefor, the US Government shall receive only those rights with respect to the Software and Documentation 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 and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. The Software was developed at private expense.
- Governing Law and Venue. This Agreement shall be governed by the laws of the State of Maryland without regard to its conflict of laws provisions. You hereby consent to suit in, and to the personal jurisdiction of the state courts located in Loudoun County, Virginia or the federal courts located in the Eastern District of Virginia with respect to any matter arising out of this Agreement. The United Nations Convention On Contracts for the International Sale of Goods does not apply to this Agreement.
- Miscellaneous Provisions. A failure or delay of CIS Mobile to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired and the invalid provisions shall be replaced by a mutually acceptable provision. This Agreement may be updated from time-to-time by CIS Mobile by its posting changes thereto on its website, located at https://cismobile.com/eula. The parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. There are no intended third party beneficiaries of any provision of this Agreement. Damages may be an inadequate remedy in the event of a breach by either party to this Agreement and that any such breach by either party may cause the other party great and irreparable injury and damage. Accordingly, both parties agree that the party claiming breach shall be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written and whether or not executed by the parties. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require.
— End of Agreement –
Open Source Software
The Software that resides on Mobile Devices contains certain Open Source Software. A listing of such Open Source Software can be found on the Mobile Device under “About phone” -> “Legal Information” -> “Other open source licenses”.
Required Third Party Applications
— Required Third Party Applications are provided in the Commercial Agreement —