END USER LICENSE AGREEMENT
Last Modified: September 2, 2020
BY CLICKING THE “AGREE” BUTTON WHEN INSTALLING THE APP, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APP AND DELETE IT FROM YOUR DEVICE.
- 1. License
- 1.1 Subject to the terms of this Agreement, In Time Tec grants to you, and you accept, a limited, non-exclusive, non-transferable license to download, install, and use the App and any related documentation provided by In Time Tec on a single device in connection with the App pursuant to this Agreement for your own personal or internal business use and strictly in accordance with the documentation, specifically excluding service-bureau use or use as an outsourcer or other third-party use, on a device you own or control.
- 1.2 You acknowledge that In Time Tec may have encoded within the App an “application key,” establishing the usage and functionality (e.g., the number of equivalent nodes and workstations or other features) of the App as it has been licensed to the you. The usage or functionality of App licensed to you under this Agreement may be expanded only upon payment to In Time Tec of an applicable fee.
- 1.3 You shall not:
- a. copy the App, except as expressly permitted by this Agreement;
- b. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
- c. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part of the App;
- d. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including without limitation any copy of the App;
- e. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including without limitation by making the App available on a network where it is capable of being accessed by more than one device at any time; or
- f. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App.
- 2. Protection and Security of App
- 2.1 You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under this Agreement, or any other rights to the App other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. You acknowledge and agree that the App contains proprietary and confidential information of In Time Tec and its licensors or service providers and agree to keep such information confidential.
- 2.2 All right, title, and interest in and to the App, other than that expressly granted to you in this Agreement, shall remain vested in In Time Tec or its licensors or service providers.
- 3. Collection and Use of Your Information
- 4. Term
- 4.1 The license shall become effective upon delivery of the App to you and will continue in effect until terminated by you or In Time Tec as set forth in this Section.
- 4.2 You may terminate this Agreement by deleting the App and all copies of the App from your device. In Time Tec may terminate this Agreement and/or any license issued under this Agreement at any time in its sole discretion if it ceases to support the App, if you breach a provision of this Agreement, or if in In Time Tec’s sole discretion it believes it is required to do so by law (for example, where the provision of the App to you is, or becomes, unlawful).
- 4.3 Upon termination of any license issued under this Agreement, all rights granted to you under this Agreement will also terminate and you shall cease all use of the App and delete the App on all devices you own or control. Termination will not limit any of In Time Tec’s rights or remedies at law or in equity.
- 5. Support, Upgrades, and Updates
- 5.1 You shall receive software support and upgrades for the App only to the extent provided for in the applicable In Time Tec support program then currently in effect, and upon payment of any applicable fees.
- 5.2 In Time Tec may from time to time in its sole discretion develop and provide App updates, which may include but not be limited to upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, with related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that In Time Tec has no obligation to provide any Updates or to continue to provide or enable any particular feature or functionality. Based on your device settings, when your device is connected to the internet either: (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the App or portions of the App may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
- 6. Indemnification
- You agree to indemnify, defend, and hold harmless In Time Tec and its members, managers, officers, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including without limitation attorneys’ fees, arising from or relating to your use or misuse of the App or your breach of this Agreement, including but not limited to the content you make available through the App.
- 7. Warranties
- 7.1 In Time Tec warrants, for a period of 90 days from the date of installation of the App, that the App, as originally delivered to you, will operate substantially in accordance with the functional description set out in the documentation supplied with the App, when the App is used in accordance with the documentation. In Time Tec’s sole liability and your sole remedy for a breach of this warranty shall be In Time Tec’s good faith effort to rectify the nonconformity, or if after repeated efforts In Time Tec is unable to rectify the non-conformity, In Time Tec shall accept return of the App and shall refund to you all amounts paid in respect of the App. This warranty is available only once in respect of any App licensed to you under the terms of this Agreement and is not renewed by the payment of fees for additional equivalent nodes or other increased use.
7.2 THE APP IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN TIME TEC, 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 APP, INCLUDING BUT NOT LIMITED TO 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, IN TIME TEC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPS, SYSTEMS, OR 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.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- 7.3 You acknowledge and agree that the App supplied and licensed to you under this Agreement is intended for standard commercial uses and are not specifically designed, manufactured, or intended for use or resale in critical applications or hazardous environments requiring fail-safe performance and in which the failure of App could lead directly to death, personal injury, or severe physical or environmental damage (including without limitation the operation or on-line control of nuclear facilities, aircraft navigation, or communication systems, air traffic control, direct life support machines, or weapons systems). Such undertakings are considered “High Risk Activities.” Suitability of App for use in one or more High Risk Activities would require additional appropriate development and design engineering by In Time Tec, including but not limited to the addition of appropriate redundancy and/or contingency procedures. In Time Tec and its licensors and service providers explicitly disclaim any express or implied warranty of fitness for High Risk Activities and you hereby agrees to release and hold In Time Tec and its licensors and service providers harmless from liability resulting out of or in connection with implementation of the App in High Risk Activities.
- 8. Limitation of Liability
- IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF IN TIME TEC AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, OR ASSIGNS FOR ANY CLAIM, REGARDLESS OF VALUE OR NATURE, EXCEED THE AMOUNT PAID PURSUANT TO THIS AGREEMENT FOR THE APP LICENSED TO YOU UNDER THIS AGREEMENT THAT IS THE SUBJECT MATTER OF THE CLAIM. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF IN TIME TEC, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, OR ASSIGNS FOR ALL CLAIMS EXCEED THE TOTAL AMOUNT PAID BY YOU TO IN TIME TEC UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IN TIME TEC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, AND/OR YOU HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE. THE PARTIES ALSO AGREE THAT, REGARDLESS OF THE FAILURE OF THE SOLE AND EXCLUSIVE REMEDY, IN TIME TEC WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OF WHATSOEVER KIND OR NATURE. THE PARTIES INTEND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AS AN INDEPENDENT AGREEMENT APART FROM THE SOLE AND EXCLUSIVE REMEDY IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- 9. General
- 9.1 Under no circumstances shall either party be liable to the other for any failure to perform its obligations (other than the payment of any monies owing) where such failure results from causes beyond that party’s reasonable control.
- 9.3 If any provision of this Agreement is held to be invalid, illegal, or unenforceable, it shall be deemed severed and the remaining provisions shall continue in full force and effect.
- 9.4 The App may contain freeware or shareware obtained by In Time Tec from one or more third-party sources. No license fee has been paid by In Time Tec for the inclusion of any such freeware or shareware, and no license fee is charged to you for its use. YOU ACKNOWLEDGE AND AGREE THAT THE THIRD-PARTY SOURCES PROVIDE NO WARRANTIES AND SHALL HAVE NO LIABILITY WHATSOEVER IN RESPECT OF YOUR POSSESSION AND/OR USE OF THE FREEWARE OR SHAREWARE.
- 9.5 If the App is being acquired by or on behalf of any unit or agency of the United States Government, the following provision shall apply: The App 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 App and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement. The Manufacturer / Contractor is In Time Tec, LLC, 580 E. Corporate Drive, Meridian, Idaho 83642.
- 9.6 You shall comply with all export regulations pertaining to the App in effect from time to time. Without limiting the generality of the foregoing, you expressly warrant you will not directly or indirectly export, re-export, or transship the App in violation of any applicable export laws, rules, or regulations.
- 9.7 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 provided such waiver or consent. No waiver by either party of any right, failure to perform, or of any breach by the other party under this Agreement shall be deemed to be a waiver of any other right under this Agreement or of any other breach or failure by such other party, whether of a similar nature or otherwise.
- 9.8 This Agreement shall be governed by and construed in accordance with the laws of Idaho. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
- 10. Contact Us
- If you have any questions about this Agreement or any feedback you would like us to consider, you may call us at (208) 258-2424, email us at firstname.lastname@example.org, or write to us at:
- In Time Tec, LLC
- Attn: Connect to Moodle
- Re: End User License Agreement
- 580 E. Corporate Drive
- Meridian, Idaho 83642