End User License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS PRODUCT. BY CLICKING THE ACCEPTANCE BUTTON OR OTHERWISE INSTALLING THE APP (as defined below), YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT.
This END USER LICENSE AGREEMENT (this “Agreement”), together with the Terms of Use (as defined below), sets forth the terms and conditions of your license and use of the “PULSE” mobile application (the “App”). For the purposes of this Agreement, “You” means you (i.e. the end user), and “Licensor” means PEOPLE USA LLC, an Illinois limited liability company (together with its subsidiaries and affiliates).
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License Grant
Licensor hereby grants to You a non-exclusive, non-assignable, non-transferable, limited license to use the App solely for the intended purposes as set forth, and subject to all terms and conditions provided in, this Agreement and all rules, instructions and other related information now or hereafter issued by Licensor in connection with any one or more of the foregoing (all such rules, instructions and other related information, individually and collectively, the “Documentation”). You are not permitted to: (a) lease, rent, distribute, sell, or sublicense the App or any rights therein; or (b) install, or otherwise use, the App (or any Documentation) in any unauthorized manner. Further, no license is granted to You in the human readable (i.e. “source”) code of the App (the “Source Code”). Except as expressly provided below, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, or (except as expressly provided herein) any other rights whatsoever in or to the App, any Source Code or any Documentation (specifically including any right to receive any upgrades to, or newer versions of, the App). Without limiting the generality of the foregoing You acknowledge and agree that You have no right, power, or authority whatsoever to make any modifications to, or unauthorized copies of, the App or any Source Code.
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Acceptable Use — Zero Tolerance
You agree not to install, or otherwise use, the App, in any manner whatsoever, which is either expressly prohibited (or otherwise not expressly permitted) pursuant to the terms and conditions of this Agreement, those certain “Terms of Use” issued by (or otherwise on behalf of) the Licensor with respect to the App (as amended and in effect from time to time, the “Terms of Use”), any other applicable Documentation, and/or any other applicable rules, guidelines or the like (if any) of the respective third-party platform from which You downloaded the App (e.g. the “Apple Play Store,” the “Google Play Store,” etc.) as in effect from time to time. Without limiting the generality of the foregoing, You acknowledge and agree that: (a) there is zero tolerance for objectionable content or abusive users on the App; (b) You will not post, share, or transmit any content, or otherwise engage in any conduct, that: (i) harasses, bullies, threatens, defames, or abuses any person; (ii) is hateful, discriminatory, or incites violence; (iii) is sexually explicit, pornographic, or sexualizes minors in any way; (iv) is graphically violent, promotes self-harm, or promotes illegal activity; (v) impersonates any person or misrepresents your affiliation with any person or organization; (vi) infringes any intellectual property, privacy, or other right of any person; (vii) constitutes spam, phishing, or commercial solicitation without our consent; (viii) contains malware or interferes with the operation or security of the Service; or (ix) is otherwise objectionable, unlawful, or inconsistent with the community nature of the App; and (c) Licensor may, at any time and in its sole discretion, remove any content whatsoever, and/or suspend or terminate any account, that Licensor (its sole discretion) deems to have breach any of the foregoing restrictions (or any other term or condition of this Agreement, the Terms of Use or any other Documentation).
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No Assignment; No Transfer
You agree not to transfer or assign the App (or any Source Code) and/or this Agreement to another party without the prior written consent of Licensor. If such consent is given and You transfer or assign the App and/or this Agreement, then You must at the same time either transfer any copies of the App and Documentation to the same party, or destroy or return to Licensor any such materials not transferred. Except as set forth above, You may not transfer or assign the App or rights under this Agreement.
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No Modification; No Reverse Engineering
You agree not to modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the App (including any Source Code) or assist someone in performing such prohibited acts.
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Law; Import/Export Restrictions
You are responsible for compliance with all applicable laws, regulations, rules, and legal requirements. You agree not to import or export the App, any Source Code or any Documentation (or any copies thereof), or any products utilizing any of the foregoing, in violation of any applicable laws or regulations of the United States or the country to which You have imported or exported. Further, You agree to defend, indemnify, and hold harmless, Licensor and each of its owners, agents, representatives and affiliates (Licensor and each of the foregoing being hereinafter sometimes referred to, individually as a “Licensor Party” and collectively, as the “Licensor Parties”) from and against any claim, action or liability whatsoever resulting, directly or indirectly, from any such violation by You of any such laws or regulations.
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Title
You agree that Licensor owns and holds all right, title, and interest whatsoever in and to all Software (as defined below), and all subsequent iterations and copies thereof (in each case regardless of the type, form or media). Furthermore, all title, ownership rights, and intellectual property rights in and to each of the foregoing will at all times be held by, and remain with, Licensor (including all such title and rights with respect to any and all corrections, enhancements, or other modifications made thereto). Without limiting the generality of the foregoing, You hereby acknowledge and agree that: (a) the App (and all other applicable Software) is protected by copyright and other intellectual property laws and by international treaties; and (b) all rights and interests whatsoever with respect to any Software which are not expressly granted to You under this Agreement are, and at all times will be, expressly reserved by, and for the benefit of, Licensor. As used herein the term “Software” means and includes, individually and collectively, the App and all content, features, functionality, services, and materials now or hereafter made part of, or otherwise available in connection with, the App (specifically including all Source Code and Documentation).
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Term and Termination
This license will remain in effect indefinitely from the date that You first download the App and until all instances of the App have been deleted from your device. Further, for the avoidance of doubt, the foregoing refers only to the term of the license and will not affect the survival of any indemnification or other obligations of You provided in this Agreement.
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Severability
Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. Any term or provision of this Agreement that is invalid or unenforceable in any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. In the event that any clause, term, or condition of this Agreement will be held invalid or contrary to law: (a) this Agreement will remain in full force and effect as to all other clauses, terms, and conditions; (b) the subject clause, term, or condition will be revised to the minimum extent necessary to render the modified provision valid, legal and enforceable; and (c) the remaining provisions of this Agreement will be amended to the minimum extent necessary so as to render this Agreement as a whole most nearly consistent with the original language hereof in light of the modification or removal of the invalid or illegal provision.
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Disclaimer of Representations and Warranties
To the maximum extent permitted by applicable law, the App (and all other Software) is provided to You on an “as is,” “as available,” and “with all faults” basis, without representations or warranties of any kind whatsoever, whether express, implied, statutory, or otherwise. Without limiting the foregoing, You hereby acknowledge and agree that: (a) neither Licensor (nor any other Licensor Party) represents or warrants that the App (or any other Software) will meet your requirements, operate without interruption or error, be secure, be free from viruses or other harmful components, or that any defects will be corrected; (b) neither Licensor (nor any other Licensor Party) has made (or otherwise makes) any representation or warranty with respect to the merchantability, fitness for a particular purpose, title, non-infringement, quiet enjoyment, accuracy, reliability, availability, security, or performance of the App (or any other Software), and any such representation or warranty is hereby expressly disclaimed by the Licensor (and each other Licensor Party); and (c) any download, installation, access to, or use of, the App (or any other Software) by You is, and at all times will be, at your sole risk.
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Limitation of Remedies
Notwithstanding anything to the contrary herein (or otherwise), You hereby acknowledge and agree that to the maximum extent permitted by applicable law UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL LICENSOR (or any other Licensor Party) BE LIABLE TO YOU (or any other person) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSEOVER; specifically including any liability whatsoever with respect to damages for loss of goodwill, lost profits, business interruptions, work stoppage, computer failure or malfunction, or any other personal or commercial damages or losses (of any kind or nature whatsoever) arising from the use of (or inability to use) any Software (whether or not due to any defects therein). Without limiting the generality of the foregoing, You further acknowledge and agree that in no event will Licensor be liable for any of the aforementioned damages whatsoever even if Licensor had been informed of the possibility of such damages (or such damages were reasonably foreseeable), or for any claim by any other party.
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Indemnification
You agree to defend, indemnify, and hold harmless Licensor (and each of the other Licensor Parties) from and against all liabilities, costs, damages, and expenses (including settlement costs and reasonable attorneys’ fees) whatsoever arising from, or otherwise in connection with, any claims from any person relating (in whole or in part) to any use, reproduction, or distribution of any Software by You, or any breach of any representation, warranty, or obligation of You under this Agreement.
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Entire Agreement
This Agreement, together with the Terms of Use and all other Documentation, contains the entire agreement between You and Licensor with respect to the subject matter hereof and supersedes all prior agreements and understandings, if any, with respect thereto. However, in the event of any express conflict between the Terms of Use or any other Documentation and any provision in this Agreement, this Agreement will govern and control.
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Acknowledgment
By downloading, installing, or using the App (or any other Software), You indicate that You have fully read and understand both this Agreement and the Terms of Use, and agree to be bound by all terms and conditions contained herein and therein.
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Section Headings; Construction
The headings of Sections and subsections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. Whenever the context requires or permits, the singular will include the plural, the plural will include the singular, and the masculine, feminine and neuter shall be freely interchangeable. Unless otherwise expressly provided: (a) the words “hereof” and “hereunder” and similar references refer to this Agreement in its entirety and not to any specific section or subsection hereof; (b) the term “including” herein will be read as “including without limitation,” or “including but not limited to,” and will not be deemed to create an exclusive reference; (c) any use of the words “and” or “or” herein in conjunction with, or otherwise in relation to, one or more stated items will, unless the context specifically requires otherwise, be read to apply equally to any one or more (including all) of such items (i.e. read as if “and/or” was used); (d) any reference herein to a particular action (including with respect to paying or incurring any amounts) or inaction taken, or to be taken, “by” a particular party will, unless the context specifically requires otherwise, be read to apply equally to all such actions or inactions taken indirectly by, or otherwise for the benefit of, the subject party; (e) any use of the term “person” herein means any individual, firm, corporation, business enterprise, trust, association, joint venture, partnership, limited liability company, governmental body or other entity, whether acting in an individual, fiduciary or other capacity; (f) the words “laws,” “applicable laws,” and the like will, whenever the context requires or permits, include all laws (including the common law), statutes, rules, regulations, decrees, ordinances, codes, proclamations, declarations, orders of any applicable governmental authority and the like applicable to, or otherwise governing, the subject matter; (g) any use of the term “may” will be deemed permissive and not obligatory, and any use of the terms “will” and “shall” will be deemed mandatory; (h) any reference to a particular agreement will, unless the context specifically requires otherwise, refer to and include any future modification, amendments, restatements or replacements of such agreement; and (i) any use of a defined term will, whenever the context requires or permits, apply to the whole of the same and to any portion thereof.
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Waiver and Amendments
No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver, amendment or modification is sought to be enforced. Further, no failure or delay by either party in exercising any rights, powers, or remedies under this Agreement shall operate as a waiver of any such right, power, or remedy.
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Governing Law; Jurisdiction; Waiver of Jury Trial
This Agreement will be governed by, and construed in accordance with, the laws of the State of Illinois, without giving effect to any of its principles of conflicts of law that would result in the application of the law of any other jurisdiction. You hereby irrevocably agree that: (a) any action or proceeding arising out of or relating to this Agreement will (at the sole discretion of Licensor) be brought in any federal or state court of competent jurisdiction in the State of Illinois; (b) summons and complaint commencing an action or proceeding in any such court will be properly served and will confer personal jurisdiction if served personally or by registered mail as provided herein, or as otherwise provided under the laws of the State of Illinois; (c) to the fullest extent permitted by law, You hereby waive any objection You may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court, and any claim that such suit, action or proceeding brought in any such court has been brought in an inconvenient forum; and (d) to the fullest extent permitted by law, You hereby waive any right You may now or hereafter have to a jury trial for any claims that may arise out of this Agreement.