END USER LICENSE AGREEMENT
By using the Software, as defined herein, you (“You”) hereby agree to the following license terms and conditions. This is a license agreement (“Agreement”) with Engineus, LLC, a Michigan limited liability company (“Engineus”), and You should not, and are not permitted to, use the Software unless You agree to the terms set forth herein. Further, Engineus may update this Agreement from time to time and it is Your responsibility to check for and review any updates to the Agreement. Your use of the Software after any updates constitutes Your acceptance of the updated Agreement.
1.1 “Software” shall mean any and all (i) source code and object code provided to You in the iMascotTM mobile application relating to animated emoticons of sports figures and related derivative works, (ii) patentable subject matter, whether or not it is set forth in a patent application, any patents, trademarks, copyrights, trade secrets, and other intellectual property rights associated therewith (collectively “Intellectual Property”), and (iii) any copies (both electronic and paper) of the foregoing.
- YOUR RIGHTS AND RESTRICTIONS.
2.1 Grant of License.
2.1.1 Subject to Your strict compliance with the terms and conditions of this Agreement, Engineus hereby grants to You a non-exclusive, non-transferable, revocable limited license to use the Software for the sole purposes of accessing Engineus’s mobile application for personal, non-commercial enjoyment.
2.2 Restrictions and Requirements of Use.
2.2.1 Except as expressly provided in Section 2.1, no other license or right in the Software is granted to You under this Agreement directly or by implication or otherwise. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, You may not:
- Remove any copyright notice, proprietary information notices, or other notice;
- Assign, sublicense, lease, or in any other way transfer or disclose the Software to any third party;
- Use the Software for any commercial purpose;
- Use the Software, or create or use content through the Software, that violates any applicable law, including the intellectual property laws or privacy or publicity laws of the United States and foreign jurisdictions;
- Use the Software, or create or use content through the Software, in a way that violates the rights of others, such as, without limitation, for bullying, harassment, defamation, sexually explicit material, or the like.
- Use the Software, or create or use content through the Software, that contains vulgar, obscene, explicit, sexually explicit, lewd, offensive, profane, disparaging, defamatory, libelous, or slanderous material, including through language (spoken or written) and gestures, as determined in Engineus’s sole discretion.
- Reproduce or use any part of the Software, compiled application, or use the Software except as provided in this Agreement;
- Reproduce, modify, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form;
- Publicly post or display, or allow to be publicly posted or displayed, content created using the Software;
- Do anything that inhibits, impedes, slows, or otherwise modifies operation of the Software or the use of the Software by others; or
- Otherwise do anything that is not expressly permitted by these terms.
2.2.2 The restrictions set forth in Section 2.2 shall apply equally to attempts to perform the restricted activities, regardless of whether or not any such attempt is successful.
2.2.3. You agree that You will report to Engineus any violation of the restrictions set forth in Section 2.2, or any violation of this Agreement, by another user of which You become aware.
2.3 Confidentiality and Passwords.
2.3.1 You agree and acknowledge that the Software is: (i) proprietary to Engineus; (ii) is of significant value to Engineus; (iii) contains trade secrets of Engineus; and (v) constitutes the confidential information of Engineus. You shall not disclose how the Software operates, the content of the Software, and data associated with the Software.
2.3.2 You acknowledge that access to the Software will be obtained by creating a user account with Engineus, and receiving a unique username and/or password (collectively “Password”) that will be assigned to You upon download and/or registration with the Software. To create a user account with the Software, You must be at least 13 years of age. Children under 13 years old are prohibited from using the Software. If Engineus believes or receives information that a user is under 13 years of age, Engineus will take commercially reasonable actions to delete the associated user account and any information associated therewith. You agree to not share the Password with any third party and not provide any third party access to the Software with Your Password. You are solely responsible for any and all activity that occurs through Your user account. Should You become aware that Your Password has become lost or is otherwise in the public domain, You will provide notice to Engineus as soon as possible and change Your username and/or password. You will not create more than one user account, nor create a user account if Your user account has been deactivated by Engineus.
2.4. Injunctive Relief. You acknowledge and agree that Engineus will suffer irreparable damage in the event of a breach by You of the terms of Sections 2.2 and 2.3 of this Agreement, and that Engineus will be entitled to injunctive relief in the event such breach can be proven by Engineus to have caused actual damages to Engineus.
- INTELLECTUAL PROPERTY.
3.1 Existing Intellectual Property. As between the parties, Engineus is and shall be the exclusive owner of all right, title, and interest in and to (i) the Software (including source code and object code), and (ii) all patent, copyright, trademark, trade secret, and any and all other Intellectual Property and proprietary rights existing now and in the future, whether or not registered or perfected (but to the extent existing, all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force), and whether arising by operation of law, contract, or otherwise (collectively, “Intellectual Property Rights”) in and to the foregoing. The Software is protected by copyright and other applicable laws, including, without limitation, by United States Copyright Law, international treaty provisions, and applicable laws in the country in which it is being used. You may not copy or use the Software except as permitted herein. You agree not to modify, adapt, or translate the Software except as permitted herein. Any information or documentation supplied by Engineus or otherwise obtained by You in connection with or as a result of this Agreement may only be used by You for the purpose described herein and may not be disclosed to any third party (except as permitted herein) or used to create any software which is substantially similar to the Software. The parties acknowledge that “substantially similar software” means software that is configured to animate emoticons of sports figures based on a user’s facial movement and expressions.
3.2 Your Data. Any and all data, input, measurements, notes, content you create (such as audio and/or visual recordings), or any other information that You input into or create using the Software (“Data”), to the extent you own and have rights in such Data, shall be assigned to Engineus for its use. You hereby assign the entire right, title, and interest to the Data to Engineus and agree to take further actions as needed to effectuate this assignment. You expressly acknowledge that by inputting Data, that You are releasing all rights to the Data.
- WARRANTY, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY.
4.1 Warranty Disclaimer. Except as specifically set forth above and as between the parties, no further warranty of any kind is being provided by Engineus, including, without limitation, any warranty that the Software shall be free from defects in design, material, or workmanship. YOU ASSUME TOTAL RESPONSIBILITY FOR THE USE OF THE SOFTWARE, AND THE SOFTWARE IS PROVIDED ON AN “AS-IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER LAW OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE (COLLECTIVELY, “DISCLAIMED WARRANTIES”), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED BY ENGINEUS AND FOREVER WAIVED BY YOU. NO ADVICE OR INFORMATION GIVEN BY ENGINEUS, ITS AFFILIATES, OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OR OBLIGATION OF ENGINEUS.
4.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ENGINEUS SHALL NOT BE LIABLE TO YOU, AND YOU COVENANT THAT YOU WILL NOT ASSERT A CLAIM AGAINST ENGINEUS, UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES RESULTING FROM LOST PROFITS, OR INTERRUPTION OF BUSINESS, EVEN IF ENGINEUS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE YOU OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE.
- TERM AND TERMINATION.
5.1 Engineus reserves the right to modify or discontinue operation of the Software or any portion thereof or services related thereto at any time, without notice to You. Such modifications may include, without limitation, changes to available content, required software or hardware for Software operation, or any other aspect of or relating to the Software. Engineus reserves the right to refuse to provide services to anyone, in our sole discretion. Engineus reserves the right to reject Your user account by disabling Your user account, and Engineus will notify the You of the decision to reject Your registration. Even after acceptance, Engineus may suspend, restrict, or terminate Your user account and ability to use the Software in our sole discretion, with or without cause and without prior notice to You. If Engineus believes Your actions may cause Engineus or other users legal liability, harm, or loss, Engineus reserves the right to notify other users of Your actions. Should You object to any of the terms in this Agreement or any subsequent modifications thereto, or become dissatisfied with the Software and related services in any way, Your only recourse is to immediately: (i) discontinue use of the Software and any related services; and (ii) terminate Your membership in the Software by providing Engineus written notice of termination. Engineus reserves the right to deem Your user account inactive and close it if there is no activity on Your account for one year.
- Copyright Infringement.
6.1 If You believe that any portion of the Software infringes your copyrights, You may send a written notification of such infringement to our designated agent identified below. Such notification is provided under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c) (3) and must contain substantially the following information:
- Identification in sufficient detail that the copyrighted work or intellectual property that You claim has been infringed so that Engineus can locate the material.
- Identification of the URL or other specific location on website that contains the material that You claim infringes Your copyright described in Item one above.
- Provision of the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf.
- Statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- Statement by You that the information contained in Your notice is accurate and that You attest under the penalty of perjury that You are the copyright owner or that You are authorized to act on the copyright owner’s behalf.
- Provision of Engineus’ name, mailing address, telephone number, and email address. You may send your Notification of Alleged Copyright Infringement to our designated agent by fax, mail, or E-Mail as set forth below:
1370 N Oakland Blvd suite 150
Waterford, MI 48327
7.1 Indemnification. You shall, except to the extent caused by Engineus’s gross negligence or willful misconduct, indemnify and hold harmless Engineus, and all its officers, directors, employees, and agents, for any losses, claims, damages, judgments, assessments, costs, and other liabilities, including reasonable out-of-pocket costs and expenses as they are incurred by Engineus in connection with any demands, law suits, and other legal actions by third parties against Engineus arising out of or alleged to arise out of (i) any gross negligence or willful misconduct by or of You or Your agents, or (ii) any breach by You of any term or provision of this Agreement.
7.2 Assignment. You may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Engineus. Any attempted assignment without such prior written consent shall be void. Engineus may assign all or part of this Agreement immediately, without the prior written consent of You.
7.3 Dispute Resolution. The parties agree to attempt to resolve any dispute concerning this Agreement through good faith negotiations and mediation. In the event that the parties cannot resolve the dispute through such mediation, the parties agree to submit their dispute to binding arbitration before a single arbitrator, pursuant to the existing rules of the American Arbitration Association, with procedures to be mutually agreed upon by the parties. The arbitration shall take place in or around Detroit, Michigan.
7.4 Severability. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be amended to reflect, to the greatest extent permitted under applicable law, the original intent of the parties, and the remainder of the provisions shall remain in full force and effect.
7.5 Waiver. Either party’s failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of that or any other of its rights hereunder at any later date or time.
7.6 Survival. All terms and provisions of this Agreement that should by their nature survive the termination shall so survive.
7.7 Entire Agreement. This Agreement constitutes the entire agreement between You and Engineus with respect to the subject matter hereof. This Agreement supersedes any prior agreements, representations, or dealings between the parties.
7.8 Headings. The section headings herein are for convenience and reference purposes only and shall not serve as a basis for construction or interpretation.