The terms contained in this End User License Agreement (the “Agreement”) govern the use of the software application delivered by InfiniG, Inc. (the “Company”) as a subscription service (the “Service”), as well as any documentation, patches, bug fixes, corrections, updates, upgrades, and support services of the same. This Agreement is a legal and enforceable agreement between Company and you as the individual, the company, or the legal entity that will be using the Service (hereinafter “You” or “Your”). By downloading, installing, using, copying, clicking on “I agree”, or otherwise indicating assent electronically, or using the Service, You agree to the terms of this Agreement.
Capitalized terms of this Agreement will have the meaning given when they first appear and may be used in the singular or in the plural, as the context requires. In this Agreement, Company and You will individually be referred to as a “Party” and jointly as “Parties”.
RIGHT OF USE
Subject to Your timely payments of applicable fees during an active subscription term (the “Term of Service”), and subject to Your compliance with this Agreement, Company hereby provides You a non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) use the Service, (b) use any software related to the Service (in object code format only) including all enhancements, bug fixes, updates and upgrades thereto (collectively, the “Software”) solely for use in accessing and using the Service; (c) use and reasonably reproduce all documentation related to the Software and Service, including manuals, training materials, data models, flow charts, functional specifications, instructions and complete or partial copies of the foregoing (collectively, the “Documentation”); and (d) access the Service as described above solely on devices or systems controlled, operated, and maintained by You. You may use each licensed copy of the Software that is provided on or with any devices or systems only as embedded in or for execution on that specific device or system (or replacement thereof) owned or leased by You.
TERMS OF USE
Company will use best efforts to make the Service available for the duration of the Term of Service except for planned downtime and any unavailability caused by circumstances beyond Company’s reasonable control, including, for example, an act of God, an act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Company employees), Internet service provider failure or delay, third party application, or denial of service attack.
The quality and performance of the Service relies on the availability of the local network and Internet connection. In order to maintain such quality and performance, You must (a) maintain an Internet connection as required to meet the needs of the Service; (b) avoid making changes to the local network (LAN) infrastructure, firewalls or other network components that could impact their ability to connect to the Service; (c) provide Company or its assignee access rights to monitor the Service programmatically through API connections; and (d) grant Company or its assignee the right to update or upgrade the Service for regular maintenance, quality, performance, security or make other changes to the Service. Company explicitly reserves the right to make modifications to the Service provided that such modifications will not materially decrease the overall functionality of the Service during the Term of Service.
The Service by nature carries traffic on behalf of Mobile Network Operators, who are in turn bound by regulations of the United States Federal Communications Commission (FCC) regarding the safety and well-being of the general public, including, but not limited to, delivering 911 calls and public service announcements. To comply with these regulations, certain parameters such as the physical coordinates of any installed radio equipment, are captured and validated by Company before turning on the Service. You agree to not change, or enable others to change, such parameters without Company’s prior written approval. You acknowledge and agree that such changes without Company approval and re-validation will be deemed a material breach of this Agreement and may result in FCC fines and/or other penalties, and You agree to indemnify Company with respect to any such fines and/or other penalties.
You are solely responsible for: (a) following any access instructions, specifications, and application Documentation provided by Company; (b) establishing strong authentication and authorization policies, such as password requirements, and maintaining the confidentiality of all parties permitted to access and use the Service on Your behalf pursuant to this Agreement (each, a “User”); (c) the security, accuracy, quality, and lawful use of User Data (as defined below) and the means by which You acquired such User Data; and (d) any and all access and use of the Service via any User account and all related activity, including compliance with this Agreement.
You retain all right, title and interest in and to any data, content, code, video, images, or other materials of any type that You or Users submit to the Service (“User Data”). You grant Company, its affiliates and its and their applicable service providers a worldwide, limited term, royalty-free license to host, copy, transmit and display User Data as necessary to provide the Service in accordance with this Agreement and the applicable Documentation.
If You make any suggestions about the Service and Software features to Company, Company is free to use, disclose, reproduce, modify, license, transfer and otherwise distribute and exploit such information or materials without restrictions.
This Agreement is subject to, and hereby incorporates by reference, the terms and conditions available at https://www.infinig.io/terms-of-use. If there is a conflict between the terms and conditions of the Terms of Use and this Agreement, the Terms of Use will control.
You shall use the Service and Software solely as expressly permitted in this Agreement. You have no right to, and specifically agree not to, (a)(i) transfer, assign, sublicense, sell, resell, lease, distribute, or otherwise dispose of the Service, Software, or Documentation; (ii) commercially exploit or market the Service, Software, or Documentation in any way, with or without charge; or (iii) provide unauthorized application services, rental, outsourcing, service bureau, or timesharing in connection with the license rights granted to the Service, Software, or Documentation under this Agreement to any other person, including, without limitation, any of Your employees, agents, customers, or representatives, or use the Service or Software on unauthorized equipment, and any such attempted or actual transfer, assignment, sublicense, resale, lease, distribution, disposal, unauthorized application services, rental, outsourcing, or timesharing, of Your license rights under this Agreement will be void; (b) make error corrections to or otherwise modify or adapt the Service, Software, or Documentation or create derivative works based upon the Service, Software, or Documentation, or permit third parties to do the same; (c) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form to gain access to the Software or any source code, structure, algorithms, sequences, organization, ideas, trade secrets, or confidential information contained therein (except where the foregoing is expressly prohibited by applicable local law and then only to the extent so prohibited); (d) publish or disclose any information or results relating to performance, performance comparisons, or other “benchmarking” activities relating to the Service, Software, or Documentation; (e) obscure, alter, remove, or destroy any proprietary markings, restrictive legends, or intellectual property notices on any of the Service, Software, or Documentation; (f) access or use any of the Service, Software, or Documentation for purposes of designing or developing a competing product or service; (g) abuse, interfere with, or disrupt networks, security systems, user accounts, or the integrity or performance of the Service or third party data contained therein; (h) facilitate the attack or disruption of the Service, including, without limitation, a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware, and cancelbots); (i) use the Service in a way prohibited by law or that would cause You or Company to be out of compliance with applicable law; or (j) copy the Service, Software, or Documentation, except for archival or backup purposes or as required by normal installation procedures specified by Company.
The Service, Software, and Documentation are licensed by Company and not sold. Except as provided in this Agreement, no license or other right is granted, by implication, estoppel or otherwise, to You under any patents, Confidential Information (as defined below) of Company, or other intellectual property rights or proprietary rights now or hereafter owned or controlled by Company. You shall not use the Service, Software, or Documentation to develop a competing product or for timeshare purposes or in any other manner not permitted by this Agreement without the prior written consent of Company. Notwithstanding anything to the contrary herein, and notwithstanding any reference to the sale of any the Service, Software, or Documentation hereunder, except for the rights expressly granted to You under this Agreement, all right, title and interest (including, without limitation, all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Service, Software, or Documentation are and shall remain exclusively owned by Company and its licensors.
In addition to any of its other rights or as otherwise set forth in this Agreement, Company reserves the right to suspend use of or access to the Service and Software: (a) in the event that Company does not timely receive payment from You; (b) if You breach this Agreement; (c) if Company reasonably determines suspension of the Service is necessary to avoid material harm to Company or its other Users; or (d) as required by subpoena, court order or other legal process.
OPEN-SOURCE AND THIRD-PARTY LICENSES
The Software and/or Service may contain, incorporate, and/or execute open-source software, freeware or shareware (collectively, “Open-Source Programs”) obtained by Company from a third-party source. No license fee has been paid by Company for the inclusion of any such Open-Source Programs, and no license fee is charged to You for its use. YOU ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR THE PROVIDER OF OPEN-SOURCE PROGRAMS PROVIDES ANY WARRANTIES OR REPRESENTATIONS AND SHALL HAVE NO LIABILITY WHATSOEVER IN RESPECT OF YOUR POSSESSION AND/OR USE OF THE OPEN-SOURCE PROGRAMS.
The Open-Source Programs are not licensed to You under the terms of this Agreement but, instead, are licensed under the terms of the open-source license applicable to such Open-Source Program (e.g., the GNU General Public License or the BSD License). Company grants You no right to receive source code to the Open-Source Programs though, in some cases, rights and access to the source code for the Open-Source Programs may be available directly from the provider of such Open-Source Programs. Your use of each Open-Source Program is subject to the terms and conditions of each applicable license.
If You use the Service and/or Software in connection with any third-party software, services, and/or other technology not provided by Company (collectively, “Third-Party Technology”), You are solely responsible for complying with the Third-Party Technology vendor’s applicable terms and conditions and privacy policies. You further acknowledge that all use of Third-Party Technology is at Your sole risk. Company is not obligated to provide any support for any Third-Party Technology. Company does not guarantee or warrant that the Service or Software will have any ongoing integration support and/or will remain interoperable with any Third-Party Technology; Company reserves the right to discontinue any Service and/or Software integration that permits interoperability or use with any Third-Party Technology at any time in Company’s sole discretion.
WARRANTY AND INDEMNIFICATION
No warranties of any kind, whether express or implied, are given by Company with respect to the Service, Software, or Documentation or any use thereof, and the Service, Software, and Documentation are provided on an “AS IS” basis. Company hereby expressly disclaims all such warranties, including, without limitation, any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising out of course of performance, course of dealing or usage of trade. In no event shall Company be liable for any indirect, special, incidental, punitive or consequential damages of any kind, under any theory of liability, in connection with this Agreement or the subject matter hereof, even if You have been advised of the possibility of such damages.
Any warranties, disclaimers or indemnification provisions set forth in any applicable terms and conditions of sale state the full warranties and indemnification that Company offers in connection with the Service and Software. In addition, Company does not warrant that the Service or Software will operate in combination with hardware, software, systems or data not provided by Company, except as expressly specified in the Documentation, or that the operation of the Service or Software will be uninterrupted or error free.
Company products are intended for standard commercial uses. They must not be sold, licensed or otherwise distributed for use in any hazardous environments requiring fail safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, mass transit, direct life support machines, medical applications, weapons systems, or in any other inherently dangerous applications in which the failure of products could lead directly to death, personal injury, or severe physical or environmental damage. You hereby agree that the use, sale, license or other distribution of the Service and/or Software for any such application, without the prior written consent of Company, shall be at Your sole risk. You agree to defend and hold Company harmless from any claims for loss, cost, damage, expense or liability that may arise out of or in connection with the use, sale, license or other distribution of any products in such applications. Notwithstanding the foregoing, Company shall have no liability if any claim results from any modification or unauthorized use of the Service or Software by You, and You shall defend and indemnify Company against any such claim.
LIMITATION OF LIABILITY
The limitation of liability provisions set forth in any applicable terms and conditions of sale state the full limits of Company’s liability under this Agreement. No action, regardless of form, arising out of any of the transactions under this Agreement may be brought by You more than one (1) year after You acquire knowledge of the basis of such action.
The foregoing provision limiting the liability of Company's employees, agents, officers and directors shall be deemed to be a trust provision, and shall be enforceable by such employees, agents, officers and directors as trust beneficiaries.
GENERAL
This Agreement constitutes the entire agreement between Company and You with respect to its subject matter and supersedes all prior oral and written communications and agreements between the parties relating to such subject matter. If any provision of this Agreement is held to be invalid, illegal or unenforceable, it shall be severed and the remaining provisions of this Agreement shall continue in full force and effect to the maximum extent possible.
You acknowledge and agree to comply with any applicable export regulations pertaining to the Service and/or Software in effect from time to time. Without limiting the generality of the foregoing, You expressly warrant that You will not directly or indirectly export, re-export, or transship the Service or Software in violation of any export laws, rules or regulations of the United States.
No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. The waiver by either party of any right hereunder, or of the failure to perform or of a breach by the other party, shall not be deemed to be a waiver of any other right hereunder or of any other breach or failure by such other party, whether of a similar nature or otherwise.
Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Company will use its commercial best efforts to notify You of such Changes but is not required to do so. You should periodically review this Agreement for any Changes. Changes will be effective thirty (30) days after Company makes any such Changes to this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of California. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts of Santa Clara County, California, in connection with any claim, action, suit or proceeding relating to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.