NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN, AVANTAR AND YOU THE USER HEREBY AGREE AS FOLLOWS:
(a) “You” shall mean the individual using, implementing, downloading, or installing the underlying Software. In the event you are using, implementing, downloading, or installing the underlying Software on behalf of an Organization, all liability for a breach of this agreement shall be the responsibility of said Organization.
(b) “Licensee” shall mean you together with any Organization you may be representing, or any related agent, employee, or representative of you that has downloaded, used, installed, or implemented the Software package on your behalf.
(c) “Software” shall mean any and all computer programs produced, created, developed, or provided by Avantar, including, but not limited to, applicable programs, fonts, components, hosted services, source code, modules, corresponding documentation, updates, upgrades, or modifications thereto.
(d) “Server” shall mean a computer system that multiple Users access or make use of, including but not limited to, terminal Servers, file Servers, application Servers or web Servers.
(e) “Effective Users” shall mean the number of Users that are effective for Software licensing, which is determined by the following method that returns the greatest number: (1) The number of Users that have access to the Software, (2) The number of computers and/or mobile devices on which the Software is installed, or (3) the number of Users per week that have access to programs making use of the Software on the Server.
(f) “Organization” shall mean a single company, business unit, entity or individual. In this Agreement, each subsidiary of a company or business unit with a separate Tax ID is considered a separate Organization.
(g) “User” shall mean a single person that is making use of the Software.
1. Acknowledgement: User acknowledges that this License Agreement is concluded between Avantar and You the User only, and no other third party.
2. Scope of License: The license granted to the User for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any mobile or web device that the User owns or controls and as permitted by the Usage Rules set forth in the Terms of Service of the Software vendor.
3. License Grant: In consideration for the license fee paid, and other good and valuable consideration, Avantar grants to Licensee only, the nonexclusive, nontransferable, perpetual, right to use the Software in accordance with this Agreement and the license defined herein that Licensee purchases (“License”). If you are installing, accessing or using this Software for your employer, this Agreement also includes your employer. Licensee may only use the Software according to the License purchased or granted by Avantar. Avantar offers only one license type to meet the need of one User.
3.1. Single User License: The Single User License (“SUL”) allows use of the Software for one User in Licensee’s Organization according to Effective Users, and is nontransferable. 1 Single User License = 1 licensed User
4. License Restrictions On Use
4.1. You shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (iii) violate any applicable laws, rules or regulations in connection with Your access or use of the Services; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Avantar or its affiliates, partners, suppliers or the licensors of the Services or otherwise obscure or modify the any manner in which the Services are displayed by means of the Application; (v) install, use or permit the Application to exist on more than one Device at a time or on any other mobile device or computer, other than by means of Your separate downloads of the Application, each of which are subject to a separate licenses (this restriction however does not limit Your right to reinstall the Application on the specific Device for which it was downloaded); (vi) distribute or link the Services to multiple Devices or other services; (vii) make the Services available over a network or other environment permitting access or use by multiple Devices or users at the same time; (viii) use the Services for data mining, scraping, crawling, redirecting, or compiling a collection of listings or data for any purpose (including, without limitation, for use by a listing product or listing service that is, directly or indirectly, competitive with or in any way a substitute for any services offered by Avantar) other than one authorized pursuant to this License. If you are found to be scraping or data mining this application’s information, Avantar reserves the right to request restitution for damages and/or bill you at a rate of $10 per search query over the daily maximum of 50 queries per unique user of this application; (ix) use the Services to send automated queries or to send any unsolicited commercial faxes, phone calls, mail, text messages, or e-mail. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES TO ENABLE THE TRANSMISSION OF UNSOLICITED VOICE MESSAGES, FACSIMILES, TEXT MESSAGES OR EMAILS IS IN VIOLATION OF THIS LICENSE AND MAY BE IN VIOLATION OF UNITED FEDERAL AND STATE LAWS AND REGULATIONS THAT MAY SUBJECT YOU TO PENALTIES UNDER APPLICABLE LAWS; (x) use the Services to attempt to interfere with the proper functioning and display of the proper operation and usage of the Services or the Avantar Websites by any other authorized users and third parties; or (xi) use any proprietary information or interfaces of the Services or other intellectual property for any reason.
4.2. You agree that you will not use the Services for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended (except that Avantar and its affiliates and their respective employees are expressly permitted to use the Services for the internal business purposes of Avantar and its affiliates). By using the Services, You agree that You will not copy, reproduce, alter, modify, create derivative works from, rent, lease, loan, sell, distribute or publicly display any of the Material (except for Your own personal, non-commercial use) accessed by the Services without the prior written consent of Avantar. In addition, You will not use the Material for any unauthorized non-commercial marketing and promotional campaigns, target or mass solicitation campaigns or political campaigning.
4.3. Some or all of the Services may be provided by an affiliate or subsidiary of Avantar or a third party, and You may be subject to both this License and the terms of service of that third party. Certain portions of the Services may utilize or include third party software that is subject to open source and third party license terms (“Third Party Software”). You acknowledge and agree that Your right to use such Third Party Software as part of, or in connection with, any Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses with regard to Your use of the relevant Third Party Software, the terms of the open source or third party licenses shall control. In no event shall these Services or components thereof be deemed to be “open source” or “publicly available” software.
4.4. Avantar does not warrant that the Services will be compatible or interoperable with Your Device or any other piece of hardware, software, equipment or device installed on or used in connection with Your Device. You acknowledge and agree that Avantar and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
4.5. You acknowledge that You are responsible for addressing any third party claims relating to Your use or possession of the Services, and agree to notify Avantar of any third party claims relating to the Services of which You become aware. Furthermore, You hereby release Avantar from any liability resulting from Your use or possession of the Services.
4.6. You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction(s) in which any Services was obtained.
4.7. This License will apply to all upgrades and updates.
5. Copyright: By downloading, installing, using, or implementing this Software, Licensee acknowledges the validity and enforceability of Avantar’s copyright in the underlying Software and code. The Software and the accompanying materials are licensed, not sold, to Licensee. Avantar maintains ownership of all copyright interests in the Software, including any derivative works based upon the Software. Licensee may not rent, lease, display, copy for commercial purposes, or distribute copies of the Software to others except under the conditions of this Agreement. Unauthorized copying of the Software or accompanying materials even if modified, merged, or included with other Software, or of the written materials, is expressly forbidden. Licensee may be held legally responsible for any infringement of intellectual property rights that is caused or encouraged by Licensee’s failure to abide by the terms of this Agreement. Licensee may make a reasonable number of archival copies of the Software for backup and recovery purposes. In any case, when a copy is created, any copyright notices included in the Software must be reproduced in their entirety on the copy.
6. Indemnification: Avantar warrants to Licensee that Avantar is, and will continue to be, the sole owner of the Software including all patents, copyrights or other applicable intellectual property rights in and to the Software unless otherwise indicated in the Software. Avantar shall defend, indemnify and hold Licensee harmless from any third party claims or lawsuits for intellectual property infringement for properly licensed Software provided by Avantar. If Software is determined to infringe, or in Avantar’s opinion is likely to become the subject of such a claim, Avantar shall, at its option, either: (a) obtain for Licensee the right to continue using the Software; or (b) modify or replace the Software to make it non-infringing. Provided, however, that in no event shall Avantar’s total liability (including attorney’s fees) under this paragraph exceed the purchase price Licensee pays for the License to use the Software. Avantar shall have no liability regarding any claim arising out of: (a) Software that is used in violation of this Agreement; (b) Software that has been altered to be different from the purchased version, unless the infringing portion exists in the unaltered purchased version; (c) use of the Software in combination with other products (including but not limited to third party Software and hardware) if the infringement was caused by such use or combination where the purchased version by itself does not infringe. Licensee agrees to defend Avantar from and against any and all claims or lawsuits, and pay any and all damages and expenses including attorney’s fees, that arise or result from the breach of the terms and conditions of this Agreement, excluding any claims and lawsuits for which Avantar is obligated to defend, indemnify and hold harmless. In the event of such a claim, Avantar shall give Licensee prompt written notice of any such claims, actions, demands and legal proceedings as soon as reasonably practicable. Avantar also reserves the right to add and/or take away functionality from any application at any time.
7. Agreement Duration and Termination: Subject to the terms and conditions of this Agreement, this Agreement begins when the Software is paid, downloaded, installed, and used and is perpetual for the single device for which it was downloaded on unless terminated. When the Agreement begins, this Agreement shall supersede all older versions of this Agreement including any older Agreements that may be embedded in the Software. This Agreement shall inure to the benefit of and be binding upon Avantar and Licensee. Licensee may terminate this Agreement at any time by discontinuing the use of the Software and destroying all copies thereof. Avantar may terminate this Agreement at any time by discontinuing to support the Software. This Agreement shall terminate upon notice from Avantar if Licensee fails to comply with any provision contained herein, and such failure or breach is not cured within ten (10) days of such notice. Upon termination, Licensee must destroy the Software and all copies (in part and in whole, including modified copies, if any) in its possession or control. Avantar reserves the right to terminate this Agreement if the use of Software by Licensee causes a loss of revenue for Avantar that exceeds one time the amount Licensee paid for the License. All restrictions prohibiting Licensee’s use of the Software and intellectual property provisions relating to Software to the benefit of Avantar shall survive termination of this Agreement.
8. Warranty and Limitation of Liability: Although efforts have been made to assure that the Software is date compliant, correct, reliable, technically accurate and will perform in accordance with the documentation, the Software is licensed to Licensee as is and without warranties as to performance of merchantability, search results accurateness, fitness for a particular purpose or use, or any other warranties whether expressed or implied. Licensee, its Organization, and all Users of the Software, assume all risks when using it. To the maximum extent permitted by applicable law, in no event shall Avantar be liable for any consequential, incidental, indirect, punitive or special damages arising out of the use of or inability to use the Software or the provision of or failure to provide support services or hosted services, or the malfunction of the User’s device this Software is loaded onto, even if Avantar has been advised of the possibility of such damages. In any case, Avantar’s entire liability under any provision of this Agreement shall be limited to zero (0) times the amount actually paid by Licensee for the License. User also agrees that Avantar can at any time choose to discontinue support and operability of Software without refunding the initial purchase price.
9. Controlling Law and Severability: This Agreement shall be governed by and construed in accordance with the laws of the United States and the state of Utah. The courts of the state of Utah, Utah County, shall have exclusive jurisdiction and venue over any dispute, proceeding, or action arising out of or in connection with this Agreement or Licensee’s use of the Software.
10. Assignment and Effect: This Agreement shall inure to the benefit of and be binding upon Licensee, as well as Licensee’s employees, employers, agents, parents, subsidiaries, representatives, contractors, and assigns.
11. Modifications: Avantar may modify, alter, or amend this Agreement at will, without notice to Licensee. Please refer back to this page to find the latest version of these terms.
12. Analytics: Avantar may implement analytics for the purpose of measuring traffic and optimizing the applications.
13.1. Certain personal information and other information provided by You in the use of the Services may be stored on Your Mobile Device even if such information is not collected by Avantar. It is Your responsibility to maintain the security of Your Mobile Device from unauthorized access.
14. Third-Party Provider Content and Services
14.1. Some of the listings, advertisements, promotions, recommendations, advice, information, materials, content and services to which You may access by using the Services are owned or provided by third parties (collectively “Third Party Content Provider”). It is Your responsibility to monitor when You have accessed any such content or services that is not part of the Services (collectively, the “Third Party Provider Content and Service(s)”) and we do not undertake any obligation to expressly notify You when You are accessing any Third Party Provider Content and Services that are not part of the Services. Third Party Provider Content and Services may include, without limitation, advertisements, other search and listing services, information and referrals, ratings services, geographic location and navigation services, businesses which allow You to bid for and/or purchase products or services, and other services of general or specific interest.
14.2. Avantar makes no representations whatsoever concerning (1) the information, software or other material appearing on, or accessible through, any Third Party Provider Content and Services (including without limitation, any advertisement for products or services), (2) the performance or operation of any Third Party Provider Content and Services (including, without limitation, any transactions initiated or conducted through any Third Party Provider Content and Services, any taxes associated therewith and any use by third parties of user credit card information), (3) any products or services advertised or sold on or through any Third Party Provider Content and Services (including, without limitation, the quality, safety and legality of such products or services or the sale thereof), or (4) the sellers of any products or services advertised or sold on or through any Third Party Content Provider Service. Avantar shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with Your use of Third Party Provider Content and Services or Your reliance on any such Third Party Content Provider content, goods or services, available on or through any Third Party Provider Content and Services.
15. Content Disclaimer
15.1. Use of the Services may result in search results and information listings that may commingle advertising and sponsored business listings (“Paid Advertising Content”) with other business listings that are not Paid Advertising Content. Depending on the text of user-provided search terms, Paid Advertising Content will be included in a search results list intermingled with other search results. We do not undertake to identify which content, if any, is Paid Advertising Content, however, You agree and acknowledge that results may be displayed in an order or manner which gives priority to Paid Advertising Content.
15.2. We make no guarantees or endorsements, nor can we be responsible for, any information accessible using the Services or included in the Material, including the currency, content, quality, copyright compliance or legality of such information, nor are we responsible for any resulting loss or damage relating to the use of such information. We reserve the right, in our sole discretion and without any obligation, to make improvements to, or correct any error or omissions in, any portion of the information accessible using the Services. Where appropriate, we will endeavor to update information accessed using the Services on a timely basis, but shall not be liable for any delay or inaccuracies related to such updates.
15.3. Use of the Services may result in the provision of information that some people find objectionable, inappropriate, or offensive. We are not responsible for the accuracy, relevancy, copyright compliance, legality, completeness, timeliness or decency of material contained in any externally linked Websites or services. We do not fully screen or investigate business listing Websites before or after including them in directory listings that become part of the Material accessible using the Services, and we make no representation and assume no responsibility concerning the content that Third Parties submit to become listed in any of these directories.
15.4. Avantar makes no representation that any third party mobile device platform or service provider has endorsed the Services, and You should not rely on the availability of the Application by means of any application catalog, storefront, or other means of downloading as an endorsement of the Application, the Services or Avantar generally. In no event shall any third party mobile device platform or service provider have any obligation to You whatsoever to furnish any maintenance and support services with respect to the Application.
16. Termination: Avantar may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Avantar. Upon the termination of this License, You shall cease all use of the Services and uninstall the Application from Your Device. Avantar reserves the right to terminate or disable all or any portion of the Application via update of the Application.
17. Remedies Available: Avantar reserves the right to seek any and all remedies available at law or in equity in connection with Your violation of this License Agreement.
18. Limited Time To Bring Claim: You acknowledge and agree that that it is the intent of both You and Avantar to limit the period of time a claim may be filed, even if the period is shorter than that fixed by the statute of limitations. You therefore agree that any cause of action arising out of or related to the Services must commence within two (2) months after the cause of action accrues, otherwise such cause of action is permanently barred.
19. Developer Name and Address: Please direct your questions to the following.
Avantar Applications Support
5152 North Edgewood Drive
Provo, Utah 84604
© 2008 Avantar, LLC
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