MOBILE APPLICATION END USER LICENSE AGREEMENT

This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (”End User” or “you”) and CMC Marine (”Company”, “we”, or “us”). This Agreement governs your use of the CMC Marine application for use on iOS and Android mobile platforms, (including all related documentation, the “Application”). The Application is licensed, not sold, to you. BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT REGISTER AND DOWNLOAD THE APPLICATION . Your use of the Application includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THIS APPLICATION, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND ANY CONTENT OR SERVICES. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

 

1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, revocable, non-exclusive, non-sublicenseable, and nontransferable license to:

(a) download, install, and use the Application for your personal, non-commercial use on mobile devices owned or otherwise controlled by you (”Mobile Devices”) strictly in accordance with the Application’s documentation./; and

(b) access, stream, download, and use on such Mobile Devices the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 5.

2. License Restrictions. Licensee shall not:
(a) copy the Application, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application 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 Application.
Company has the right, but not the obligation, to monitor any materials available on or through the Application, to investigate any reported or apparent violation of this Agreement, and to take any action that Company in its sole discretion deems appropriate, including, without limitation, termination hereunder.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. THE USE OF THE APPLICATION OR ANY PART OF THE APPLICATION, INCLUDING ANY CONTENT AND SERVICES, EXCEPT FOR USE OF THE APPLICATION, CONTENT AND SERVICES AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. “CMC Marine” and other CMC Marine trademarks, service marks, graphics, and logos used in connection with the Application, now or in the future, are trademarks or registered trademarks of CMC Marine Corporation in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Application may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Devices and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. We may use the information collected about you in order to improve our services, or identify new products and services that may be of interest to you. In doing so, we may share your information with third-parties with which we have agreements. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
5. Content and Services. The Application may provide you with access to third-party websites (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are solely governed by each Website’s respective Terms of Use, Privacy Policy, and other rules or restrictions. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Websites, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. ANY VIOLATION OF SUCH THIRD-PARTY TERMS OF USE, PRIVACY POLICIES AND THE LIKE WILL ALSO BE DEEMED A VIOLATION OF THIS AGREEMENT.
6. Geographic Restrictions. The Content and Services are based in Italy. You acknowledge that you may not be able to access all or some of the Content and Services outside of Italy and that access there to may not be legal by certain persons or in certain countries. If you access the Content and Services from outside Italy, you are responsible for compliance with local laws.
7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Devices settings, when your Mobile Devices are
8. connected to the internet either:
(a) the Application 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 acknowledge that all Updates may download and install automatically and you hereby consent to such automatic download and install of Updates. To the extent you are prompted to download and/or install any Updates, you shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
9. Third Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials or any services provided by such third parties. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
10. Term and Termination.
(a) The term of Agreement commences when you install the Application and will continue in effect until terminated by you or Company as set forth in this Section 9.
(b) You may terminate this Agreement by deleting the Application and all copies thereof from all of your Mobile Devices.
(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(j) you must cease all use of the Application and delete all copies of the Application from all of your Mobile Devices and account.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity. Company reserves the right to modify, suspend, or discontinue the Application (or any part or content thereof) at any time with or without notice to you, and Company will not be liable to you or to any third party should it exercise such right. ‌
11. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, 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 APPLICATION, INCLUDING 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, 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. COMPANY DOES NOT REPRESENT OR GUARANTEE THAT THE APPLICATION OR ANY CONTENT OR SERVICES ACCESSED THROUGH THE APPLICATION WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO. COMPANY DISCLAIMS ALL LIABILITY RELATED TO ANY SERVICES PROVIDED ON OR THROUGH THE APPLICATION, INCLUDING DUE TO ANY NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY THIRD PARTY SERVICE PROVIDER OFFERING SERVICES THROUGH THE APPLICATION.   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.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY 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 APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) 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.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OR FIFTY DOLLARS ($50.00) (EXCEPT AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY).
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, 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 reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
14. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
15. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
16. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect[; provided, however, that if any fundamental term or provision of this Agreement (including without limitation Sections 1-5 and 9-12), is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
17. Disputes and Compliance with Laws. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE APPLICATION WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. BY SUBMITTING TO ARBITRATION, YOU ARE WAIVING CERTAIN OF YOUR RIGHTS TO BRING LEGAL CLAIMS IN COURT. IN ARBITRATION, THERE IS NO JUDGE OR JURY, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN PROVIDE THE SAME RELIEF AS IN COURT, BUT MUST ADHERE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IN ARBITRATING A DISPUTE.
(a) If you have a dispute you want resolved by arbitration, you must submit notice of your claim and request for arbitration to Et Voilà Corporation. Any claim arising out of this Agreement or any alleged breach of this Agreement shall be resolved before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by phone at 1-800-778-7879.
(b) The Application is operated by Company from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Application. This Agreement is governed by and construed in accordance with the internal laws of the State of Connecticut and the arbitration rules of the Federal Arbitration Act.
(c) The arbitrator shall be a practicing attorney or retired judge with at least fifteen years total working experience as such with experience in commercial disputes involving technology or eCommerce. The arbitration shall be held in Norwalk, CT, although you may elect to participate in such dispute by teleconference or the exchange of documents. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. Each party shall bear its own costs of participating in the arbitration, including filing fees, arbitrator compensation, attorney’s fees and legal costs.
(d) The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual.
(e) YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU WAIVE ANY RIGHT TO A JURY TRIAL. YOU ALSO AGREE THAT YOU OR WE MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
18. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.
20. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. Company will not be responsible for failures to fulfill any obligations due to causes beyond its control.
21. Notification. Company may notify you with respect to the Application by sending an email message to your identified account email address or a letter via postal mail to your account mailing address, or by posting on or through the Application. Notices shall become effective immediately.
22. Compliance with Agreement. Company reserves the right to take steps Company believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that Company has the right, without liability to you, to disclose any data or account information you have provide to law enforcement authorities, government officials, and/or a third party, as Company believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Company’s right to cooperate with any legal process relating to your use of the Application or any related Content or Services, and/or a third-party claim that your use of the Application and/or any Content or Services accessed through the Application is unlawful and/or infringes such third party’s rights).

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