End User License Agreement
By using the software (“Product Software”) that is embedded on the Prova Systems & Technologies, Inc. product (“Product”), you agree to the terms of this End User License Agreement (“EULA”) between you and Prova Systems and Technologies, Inc. (“Prova Systems” or “we”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING PROVA SYSTEMS AT THE ADDRESS BELOW. Your use of (a) the website located at www.fleet-genius.com (any updates thereto) (the “Site”), (b) services through the Site (and any updates thereto) (“Site Services”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Software”) is governed by the Terms of Service, available at www.-fleet-genius.com/terms. Your purchase of the Product (excluding the Product Software) is governed by the Prova Systems limited warranty, the terms of which are provided with the Product. This EULA does not govern your use of the Site, Site Services, or Mobile Software, or your purchase of the Product (excluding the Product Software).
Subject to the terms of this EULA, Prova Systems grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes.
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Prova Systems and provide Prova Systems an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of Prova Systems for each such release.
Any future release, update, or other addition to the functionality of the Product Software, if any, provided by Prova Systems (collectively, “Updates”) will be subject to the terms of this EULA, unless Prova Systems states otherwise in writing. To keep your Product Software up-to-date, Prova Systems may automatically provide your Product with Updates to the Product Software.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Prova Systems and its licensors. Prova Systems and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Prova Systems with respect to the Product Software shall be Prova Systems’ property and deemed Confidential Information (defined below) of Prova Systems.
5. Open Source.
Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Prova Systems makes such Open Source Software, and Prova Systems’ modifications to that Open Source Software, available by written request to Prova Systems at the email or mailing address listed below.
6. Term and Termination.
This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Prova Systems may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Prova Systems. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 15 (inclusive) will remain in effect, after any such termination.
7. Warranty Disclaimer.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVA SYSTEMS PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND “WITH ALL FAULTS,” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. PROVA SYSTEMS DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. PROVA SYSTEMS MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
8. Limitation of Liability
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY BUT SUBJECT TO THE LAST SENTENCE OF THIS SECTION, (A) PROVA SYSTEMS WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE PRODUCT SOFTWARE OR THIS EULA, EVEN IF PROVA SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PROVA SYSTEMS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE PRODUCT SOFTWARE AND THIS EULA, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. PROVA SYSTEMS DISCLAIMS ALL LIABILITY OF ANY KIND OF PROVA SYSTEMS’ SUPPLIERS.
b. THE SITE SERVICES PROVIDE YOU INFORMATION (“PRODUCT INFORMATION”) REGARDING YOUR DRIVING. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS,” “WHERE IS,” AND “AS AVAILABLE.” PROVA SYSTEMS DOES NOT REPRESENT OR WARRANT THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE OR THAT PRODUCT INFORMATION OR USE OF THE PRODUCT SOFTWARE WILL OPTIMIZE THE USE OF YOUR AUTOMOBILE. DUE TO THE HIGHLY-TECHNICAL NATURE OF AUTOMOTIVE PARTS AND SYSTEMS, PROVA SYSTEMS CANNOT WARRANT OR GUARANTY THAT ANY INFORMATION OR DATA OBTAINED BY PRODUCT SOFTWARE RELATING TO YOUR DRIVING WILL BE ACCURATE OR WILL OTHERWISE PREVENT ANY DAMAGE TO YOUR AUTOMOBILE. ACCORDINGLY, YOU USE THE PRODUCT SOFTWARE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND PROVA SYSTEMS DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR AUTOMOBILE, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION OR PRODUCT SOFTWARE.
c. YOU SHOULD NOT USE ANY PRODUCT SOFTWARE OR PRODUCT THAT REQUIRES ACTION OR INPUT FROM YOU WHILE YOU ARE DRIVING.
9. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS EULA WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
“Confidential Information” shall mean the Product Software and all other information disclosed to you that Prova Systems characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this Agreement, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Prova Systems. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Prova Systems in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Prova Systems in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Prova Systems prior to such disclosure to allow Prova Systems an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Prova Systems in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
11. For U.S. Government End Users.
The Product Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
12. Export Compliance.
The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold Prova Systems harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
13. Governing Law; Venue.
This EULA, and any claim, dispute or controversy relating to this EULA, will be governed by the laws of Pennsylvania, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Lackawanna County, Pennsylvania and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that Prova Systems may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect. Any notice to you may be provided by email to the address that you registered with Prova Systems. The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. Prova Systems will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by Prova Systems will be effective only if in writing. Any waiver or failure by Prova Systems to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Prova Systems, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Prova Systems for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. This EULA constitutes the final, complete, and exclusive agreement between the parties regarding the Product Software and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Except as otherwise provided in this section, no amendment to this EULA will be valid unless in a writing hand-signed by the parties.
15. Users Outside the U.S.
If you are using the Product Software outside the United States, then the following shall apply: (a) You confirm that this EULA and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Product Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable
Questions or Additional Information. If you have questions regarding this EULA, or wish to obtain additional information, please contact us via the e-mail address or postal address available at [email protected]
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