End User License Agreement
Last Updated: June 12, 2018
This User Agreement (“Agreement”) is between STEM Innovation, LLC (“STEM Innovation”) and the person or entity that has downloaded this software (“you,” “your” or “yours”). This Agreement describes the terms under which you may use the machine executable object code version of the software accompanying this Agreement and including upgrades as described below (collectively, “Software”). By downloading and using this software you are agreeing to comply with and be bound by all the terms of this Agreement. You understand and agree that this Agreement is between you and STEM Innovation, and not with Apple, Inc. or any third party.
YOU REPRESENT THAT YOU ARE A NATURAL PERSON OVER EIGHTEEN (18) YEARS OF AGE, OR THAT IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE YOU ARE EITHER AN EMANCIPATED MINOR OR HAVE THE LEGAL PERMISSION OF YOUR PARENT OR GUARDIAN TO ENTER INTO THIS AGREEMENT. YOU FURTHER REPRESENT THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
IF YOU ARE UNDER THIRTEEN (13) YEARS OF AGE, YOU MAY NOT ENTER INTO THIS AGREEMENT AND MAY NOT PROVIDE ANY PERSONAL INFORMATION TO STEM INNOVATION.
STEM INNOVATION MAY CHANGE THIS AGREEMENT FROM TIME TO TIME, AND POST THOSE CHANGES ON ITS PUBLIC WEBSITE AT LEAST THIRTY (30) DAYS BEFORE SUCH CHANGES BECOME EFFECTIVE, UNLESS SUCH CHANGES ARE IN RESPONSE TO A CHANGE IN LAW, JUDICIAL ORDER, OR AN URGENT CHANGE IN STEM INNOVATION’S BUSINESS, IN WHICH A SHORTER PERIOD MAY APPLY. YOU AGREE TO REVIEW THIS AGREEMENT FREQUENTLY TO NOTIFY YOURSELF OF SUCH CHANGES. YOU UNDERSTAND AND AGREE, HOWEVER, THAT YOU SHALL BE BOUND BY ALL SUCH CHANGES, IF ANY, REGARDLESS OF WHETHER YOU ACTUALLY RECEIVE SUCH NOTIFICATION. IF YOU SO REQUEST AND PROVIDE A VALID EMAIL ADDRESS, STEM INNOVATION WILL ALSO NOTIFY YOU BY EMAIL OF ANY SUCH CHANGES.
I. DOWNLOAD AND LICENSE.
A. Download. By agreeing to comply with all the terms of this Agreement, you may download the Software from the App Store to a personal computer or compatible iOS or Android mobile device (collectively, a “Device”). The Software contains many features, including the capacity to enable to control, activate, deactivate, interact with or manage certain features of certain STEM Innovation equipment and embedded firmware (collectively, “Equipment”). In order to use Software, you must first register with STEM Innovation within one (1) year of the date of purchase of the corresponding Equipment. You may register with STEM Innovation and create a personal account (“Account”) by fully and accurately completing the sign up page, and providing to STEM Innovation your name and email address, and a password (selected by you, subject to STEM Innovation’s security and other requirements), and such other information as STEM Innovation my from time to time require (collectively, “Registration Information”); you agree to keep all Registration Information updated and correct. Your Account is personal to you, and you may not share it or allow it to be used by anyone other than you. You are solely responsible to ensure that your Account is used only by you and in a manner consistent with this Agreement. STEM Innovation shall allow you to select a user name and password for your Account, subject to STEM Innovation’s security and other requirements. You agree to keep such user name and password confidential, and not allow any third party to use such user name or password. You agree to indemnify and defend STEM Innovation from and against any losses or liabilities arising from any disclosure or misuse of your user name or password.
B. License. Subject to all other terms of this Agreement, STEM Innovation hereby grants to you a royalty-free, non-exclusive, non-transferable license, without the right to grant sublicenses, and solely for the term of this Agreement, to use Software solely for your personal use, solely on the Device for use solely with Equipment, and in a manner consistent with the “Usage Rules” set forth in the Apple “App Store Terms of Service.” You may not make or transfer any other copies of the Software. The Software is and shall remain the sole and confidential property of STEM Innovation. You agree not to modify the Software, remove any notices or markings on the Software, or reverse compile, reverse assemble, reverse engineer or otherwise attempt to learn, use or disclose the trade secrets contained in the Software, transfer the Software in whole or in part over a network, or permit any third party to do any of the foregoing. There are no implied licenses under this Agreement.
C. Confidentiality. You acknowledge and agree that use of the Software is furnished during the term of the Agreement to you on a confidential basis for your personal use and not for redistribution. You shall not use, publish, disclose, or otherwise divulge to any person, at any time, either during or after the term of this Agreement, any non-public information regarding the Software (including without limitation any passwords).
II. SERVICE LEVELS AND UPGRADES.
A. Service Levels.
(1) Standard. STEM Innovation provides a standard level of Software functionality for all Software for use with Equipment (“Standard Level”).
(2) Enhanced. For certain Equipment, STEM Innovation may in the future also offer a higher level of Software functionality (“Enhanced Level”). There may be a Fee (as defined in SECTION VII (“FEES AND PAYMENT”)) for such Enhanced Level Software, and your timely payment of such Fee shall be a condition upon your use of such Software.
B. Upgrades. From time to time, STEM Innovation may offer you an opportunity to upgrade from a Standard Level of Software to an Enhanced Level. In such case, the terms, Fees and details of any such offer shall be provided to you via email, through a notice provided through the Software itself or through the App Store.
C. Firmware Upgrades. You understand and agree that STEM Innovation may, from time to time, remotely change or upgrade the firmware resident in any Equipment and may do so without notice.
D. Local Use. You understand and agree that for certain Equipment, it may be possible to use such Equipment without the corresponding Software.
III. USE OF THE SOFTWARE.
A. Limited Use. You may use the Software only for the Equipment for which you have properly obtained the Software and only for the Service levels for which you have paid Fees (if applicable) as described in SECTION II (“SERVICES LEVELS AND UPGRADES”). You shall not access or use, or attempt to access or use, any other Service level that may be available through the Software or use the Software with respect to any equipment other than Equipment.
B. Configuration. You agree that it shall be your sole responsibility to ensure that any security or other settings on your hardware or software, including without limitation any routers or switches over which the Software may communicate with the Equipment, are properly configured to enable such communication.
You agree to the following:
A. You will not change, remove or add to any part of the Software.
B. You will not gain access to the Software through any technology or means other than the features of the Device or Equipment.
C. You agree that your use of the Software shall be for your own personal, non-commercial use.
D. You agree that you shall not use the Software or the Equipment to violate the privacy or other rights of any third party, you understand that the Software and Equipment are not life-saving or security products, and you agree that you shall not use them as such.
E. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders” or other automated programs to access the Software. You will not obtain or attempt to obtain any personally identifiable information from any other users or third parties from the Software, or use any services available on the Software (including without limitation email) for commercial purposes.
F. You agree that STEM Innovation may add to, delete from or modify the Software at any time without notice and without permission from you or any third party.
G. You agree that the content of the Software and the trademarks and service marks on the Software are owned by or licensed to STEM Innovation.
H. You agree that you shall comply with all applicable laws, and that if any law of your jurisdiction makes the performance of this Agreement, or the use of the Software or Equipment illegal, you agree that you shall terminate this Agreement upon notice to STEM Innovation, and shall not use such Software or Equipment.
I. You agree not to circumvent, disable or otherwise interfere with security-related features of the Software, and you will not impersonate any third party or interfere with any third party’s use of the Software.
J. You agree that you shall not use or permit the use of Software or Equipment: (i) for any dangerous activity; or (ii) for any activity where any failure of the Software or the Equipment to perform properly would or could cause damage to persons or property.
K. You agree to defend, indemnify and hold harmless STEM Innovation, its parent, officers, directors, employees and agents, from and against any and all claims, damages, threats, suits, proceedings, losses and liabilities (including attorneys’ fees) arising from or related to: (i) your use of and access to the Software; (ii) your violation of this Agreement; or (iii) your violation of any third party right, including without limitation any copyright, property or privacy right. This obligation will survive the expiration or termination of this Agreement.
V. SERVICE AND SUPPORT.
A. Service. You hereby acknowledge that the Software and the Equipment may: (i) not operate properly or be error-free; (ii) contain errors which may or may not be corrected; and (iii) not meet your requirements.
B. Support. If you have provided STEM Innovation with a valid email address, you may use that email address to contact STEM Innovation regarding any questions or errors you may have or encounter with the Software or Equipment at firstname.lastname@example.org or you may contact STEM Innovation via STEM Innovation’s help line (1-800-704-7186 in the U.S.). STEM Innovation shall use its commercially reasonable efforts to answer such questions and correct such errors (where such errors are reproducible and caused by Software or Equipment) by email or via telephone during STEM Innovation’s normal business hours. The foregoing states STEM Innovation’s sole liability, and your sole right, with respect to such questions and errors. You understand and agree that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
C. Email Notices. If you have provided STEM Innovation with a valid email address, STEM Innovation may notify you from time to time by email of information that STEM Innovation believes may be useful or important to you regarding your use of the Software or the Equipment. STEM Innovation may also notify you through the Software itself.
VI. INFORMATION AND PRIVACY.
A. Information. STEM Innovation obtains information from and about you in a number of different ways, including:
(1) General Information. Some information (“General Information”) is gathered automatically when you access the Software or use the Equipment or a Device. This General Information (which includes IP address for the Equipment and each Device, traffic and usage patterns, type of Equipment and Device, type of operating system, the domain name of your Internet service provider and similar information) does not identify you personally; and
(2) Personal Information. Some information that may be identifiable as yours, including without limitation your Registration Information, and the content of any email messages you send, together with your email address and STEM Innovation’s response to you (collectively, your “Personal Information”) is not gathered automatically through the Software. If you wish to provide Personal Information, you must do so voluntarily.
B. General Use and Disclosure of Information. STEM Innovation uses and discloses your information as follows:
(1) General Information. STEM Innovation uses and discloses General Information to understand Software and Equipment demographics and preferences, and shall do so without notice to, or permission from, you or any third party. In particular, STEM Innovation may provide aggregate information about STEM Innovation’s customers, sales, Software traffic patterns and related information to STEM Innovation’s affiliates or third parties; and
(2) Personal Information. STEM Innovation uses and discloses to its business partners and affiliates Personal Information for purposes of administering STEM Innovation business activities, providing customer service and making available other products and services to you and other STEM Innovation customers and prospective customers from STEM Innovation and those business partners and affiliates. STEM Innovation may also use and disclose Personal Information to notify you about important changes to the Software or the STEM Innovation business, new STEM Innovation services and special offers you may find valuable. STEM Innovation shall protect your Personal Information from other disclosure to third parties using a reasonable degree of care, subject to applicable law. If we sell all or part of our business, or make a sale or transfer of our assets, or are otherwise involved in a merger or transfer of all or a material part of our business, or are involved in a bankruptcy, we may transfer your information to the party or parties involved as part of that transaction.
VII. FEES AND PAYMENT.
(1) Standard Level. STEM Innovation does not currently charge any fee (“Fee”) for your use of or access to the Standard Level of Service for Software. After the later of: (i) five (5) years from the date upon which you checked the “AGREE” box as provided above; or (ii) one (1) year from the date of last sale by STEM Innovation of the particular model of Equipment that you purchased or are using with Software, STEM Innovation may require payment or may increase Fees at any time upon notice.
(2) Enhanced Level. STEM Innovation may charge, and in such case you shall pay, a Fee for your use of and access Enhanced Level Software. STEM Innovation may change the amount of the Fee for Enhanced Level Software at any time upon notice to you.
B. Payment. You shall pay all applicable Fees through the App Store when due, and according to the manner therein prescribed. Any failure to pay Fees may cause your access to the Software to terminate immediately, and may also be deemed a material breach of this Agreement.
A. Term. The term of this Agreement shall commence upon your download of this software from the App Store, and shall continue until expiration or termination as provided below.
B. Expiration. This Agreement may expire, at the option of STEM Innovation, upon notice given after five (5) years from the date upon which you downloaded the software.
C. Termination for Cause. Either party may terminate this Agreement upon notice for the material breach of the other party which breach has remained uncured for thirty (30) days (three (3) days for a failure to timely pay Fees) after notice thereof to the breaching party.
D. Termination for Convenience.
(1) By You. You may terminate this Agreement at any time without cause and upon notice. In such case, any Fees already paid by you shall not be refunded, and you shall immediately cease any use of the Software.
(2) By STEM Innovation. STEM Innovation may terminate this Agreement without cause and upon notice given at any time after the later of: (i) five (5) years from the date upon which you checked the “AGREE” box as provided above; or (ii) one (1) year from the date of last sale by STEM Innovation of the particular model of Equipment that you purchased or are using with Software.
E. Effect. Upon the expiration or termination of this Agreement, you shall immediately cease any use of Software. In such case, you shall have no obligation to pay any additional Fees, but any Fees already paid by you shall not be refunded.
F. Suspension of Access. STEM Innovation may suspend access to your Account or your use of the Software where STEM Innovation believes you have breached this Agreement, violated any applicable law or breached STEM Innovation security.
IX. CONDUCT AND LIMITATION OF LIABILITY.
A. Conduct. You understand and agree that perfect security does not exist anywhere, and you will therefore protect your Personal Information in a reasonable way at all times. Accordingly, you will not recklessly disclose or publish your Personal Information to those that would reasonably be expected to improperly use or disclose that Personal Information.
B. Limitation of Liability. IN NO EVENT SHALL STEM INNOVATION BE LIABLE TO YOU OR ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER AND WHEREVER ARISING. IN NO EVENT SHALL THE TOTAL LIABILITY OF STEM INNOVATION UNDER THIS AGREEMENT OR REGARDING THE SOFTWARE EXCEED ONE THOUSAND DOLLARS ($1000). Some jurisdictions do not allow certain limitations of damages so the foregoing may not apply to you.
C. Claims. You understand and agree that STEM Innovation, and not Apple, Inc., is responsible for any claims you or any third party may have regarding the Software, including to the extent applicable: (i) product liability claims; (ii) any claim that the Software fails to conform to any legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
D. Legal Compliance. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
E. Third Party Beneficiary. You understand and agree that Apple, Inc. and its subsidiaries are third party beneficiaries of this Agreement, and accordingly Apple, Inc. will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
X. JURISDICTION AND VENUE.
This Agreement shall be subject to the laws of the State of Utah as apply to contracts entered into and performed in Utah between Utah residents and without regard to conflicts of laws principles. The State and Federal courts located in Salt Lake County, Utah, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. You further agree that you will not participate in any way in any class action in connection with any such dispute, either as a class representative plaintiff or as a member of a putative class. The United Nations Convention on Contracts for the International Sale of Goods is hereby expressly disclaimed.
A. Statement. STEM INNOVATION PROVIDES THE SOFTWARE ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY. STEM INNOVATION HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEAL, USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR TITLE. Some jurisdictions do not allow disclaimers of certain warranties so the foregoing may not apply to you.
B. Limitations. Subject to Section XI(A), to the extent there is for any reason deemed to be any warranty under this Agreement to which the Software does not conform, you may notify Apple, Inc. and Apple, Inc. shall refund the amount you paid for the license to the Software. To the maximum extent permitted by applicable law, Apple, Inc. will have no other warranty obligation whatsoever with respect to the Software. You also understand and agree that in the event of any third party claim that the Software or your possession and use of the Software infringe that third party’s intellectual property rights, STEM Innovation, and not Apple, Inc., shall, to the extent applicable, be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission of STEM Innovation. Any purported assignment without such permission shall be void. This Agreement may be assigned by STEM Innovation in whole or in part without notice. STEM Innovation may subcontract some or all of its obligations hereunder without notice. Any waiver of any rights of STEM Innovation under this Agreement must be in writing, signed by STEM Innovation, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. Your use of the Software shall at all times comply with all applicable laws, rules and regulations. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous or additional communications, negotiations or agreements with respect thereto. You will indemnify and hold STEM Innovation (and STEM Innovation’s officers, directors, agents, subsidiaries, joint ventures, licensees and employees), harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or regulation, or the rights of any third party. You agree that: (i) the Software shall be deemed solely located in Utah; and (ii) the Software does not, and shall not be deemed to, give rise to personal jurisdiction over STEM Innovation, either specific or general, in jurisdictions other than Utah. YOU AND STEM INNOVATION AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT ANY ACTION HEREUNDER SHALL BE TRIED SOLELY BY A JUDGE.
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