SOFTWARE SUBSCRIPTION LICENSE AGREEMENT
IMPORTANT! THE ULINK DA MOBILE SOFTWARE (THE “SOFTWARE”) AND THE SERVICES ASSOCIATED WITH THE SOFTWARE (THE “SERVICES”) YOU SEEK TO ACCESS FROM THE ULINK TECHNOLOGY, INC. WEBSITE OR AN AUTHORIZED THIRD PARTY IS LICENSED ONLY ON THE CONDITION THAT YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE READ THE TERMS OF THIS SOFTWARE SUBSCRIPTION LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY.
BY DOWNLOADING, INSTALLING, EXECUTING, ACCESSING, OR USING THE SOFTWARE OR THE SERVICES, YOU SIGNIFY ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE WHO HAS THE AUTHORITY TO LEGALLY BIND YOUR ENTITY TO THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE RETURN TO THE PREVIOUS WEB PAGE WITHOUT DOWNLOADING, INSTALLING, EXECUTING, ACCESSING, OR USING THE SOFTWARE OR THE SERVICES.
The Software and the Services that you are about to access was developed by ULINK Technology, Inc., a California corporation (“Vendor”) to monitor and aid the prediction of storage device health and performance based on patterns in S.M.A.R.T. (Self-Monitoring, Analysis, and Reporting Technology) data and other parameters. The Software monitors and aids the prediction of storage device health and performance by utilizing the data generated by and from storage devices. Access to the Software and the Services is subject to purchase requirements.
This Agreement sets forth the terms under which you, as an individual or entity (or, for entities, any employee you authorize to use the Software) authorized by Vendor (“you”), may access and use the Software and the Services.
Access to the Software is by permission of Vendor only, and only for applicants who accept this Agreement. Vendor may grant or withhold approval in its sole discretion. If Vendor approves you for use of the Software, Vendor will issue a user identification (the “User ID”) and a password (the “Password”) that will authorize your access to the Software for the term of this Agreement.
Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and Vendor agree as follows:
- NATURE OF AGREEMENT. This Agreement is a legal contract made between you and Vendor. This Agreement contains the terms and conditions that you must comply with if you wish to access and use the Software.
- LICENSE GRANT. Vendor hereby grants to you a nonexclusive, nonassignable, nonsublicensable license, for your internal use only, to access and use the Software and any user’s guides, specifications, and other related documentation available online (the “Documentation”), subject to the terms and conditions of this Agreement and the type of license you obtain.
2.1 FREE LICENSE. If available, the Software may be activated with a no-cost, free license (the “Free License”). You may use the Software and the Documentation pursuant to the Free License solely for purposes of demonstration and internal testing, examination and evaluation of the Software. The Services for the Free License may be limited. Any use of the Software and the Documentation for other purposes or beyond the Free License is strictly prohibited, unless you purchase a further license to access additional features and functionalities of the Software and the Services.
2.2 PAID LICENSE. Any use of the Software and the Documentation beyond the Free License, if applicable, is conditioned upon payment in full for the Software and the Services in advance of your access (the “Paid License”). You are required to purchase the Paid License from (i) Vendor or (ii) an authorized third party (“Service Provider”) based on the published software subscription fees for such use.
- OWNERSHIP OF SOFTWARE. Vendor retains all rights to the Software, the Documentation not specifically granted in this Agreement. Vendor owns the Software and the Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to you any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or the Documentation, or the Services, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software, the Documentation, and the Services are protected by United States laws and international treaty provisions.
YOU MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, THE DOCUMENTATION, OR THE SERVICES IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
- RESTRICTIONS. To the maximum extent permitted by law, you shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software or the Services access to any third party; (c) make any copy of or otherwise reproduce the Software, the Documentation, or the Services (or any of the browser screens comprising the Software or the Services user interface) except for those copies necessarily made by the personal computer and Internet browser that are running the Software and the Services; or (d) disclose your User ID or Password to any third party.
You agree to take all reasonable steps to safeguard your User ID and Password for the Software and the Services so as to ensure that no unauthorized person will have access to it, and that no persons authorized to have access will make any unauthorized use. You shall promptly report to Vendor any unauthorized use of the Software or the Services of which you become aware and shall take such further steps as may reasonably be requested by Vendor to prevent unauthorized use thereof.
- YOUR OBLIGATIONS. You shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software and the Services; (b) generating, providing, and loading your data into the Software, including, without limitation, freight rates and historical freight data to permit you to use the Software; (c) providing and maintaining, at all times during the term of this Agreement, the Internet access necessary for your use of the Software and the Services; and (d) providing general and personal data to improve Vendor’s processes and algorithms and artificial intelligence.
- TERM AND TERMINATION. The term of this Agreement and any licenses grant herein shall commence on the date you agree to this Agreement and access the Software. You may terminate any license and this Agreement at any time on 30 days’ prior written notice to Vendor. Vendor may terminate the license and this Agreement at any time on written notice to you that you or your agent has failed to pay any amount due to Vendor for the Paid License under this Agreement. The license granted to you shall also terminate automatically on your failure to comply with any of the other terms of this Agreement. On termination of this Agreement, you agree to promptly destroy all printed copies and delete all electronic copies of any documentation that you have downloaded, printed, or created relating to the Software, the Documentation, and the Services, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on your computers. Notwithstanding termination, the provisions of Sections 3, 4, 6, 7, 8, 9, 10, 11, 15, and 16 of this Agreement shall survive and continue to apply.
- CONFIDENTIALITY. You agree that you shall not disclose to any third party the Software or any portion thereof, any technical, product, or business information, or any information that Vendor identifies as confidential (collectively, “Confidential Information”) related to the Software without the prior written consent of Vendor. You shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by you; (b) in your possession before disclosure by Vendor; or (c) disclosed to you by a third party not in violation of any obligations of confidentiality to Vendor or to any third party.
- LIMITATION OF LIABILITY. You are not entitled to receive damages from Vendor for any cause relating to this Agreement, to your use of the Software or the Service, to any services provided by Vendor under this Agreement, or to any services provided by any third party in connection with your use of the Software, including any Service Providers. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Vendor or with the distribution, operation, development, or performance of the Software or any related products.
IN NO EVENT SHALL VENDOR BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- LIMITED WARRANTY AND DISCLAIMER FOR THE PAID LICENSE. Vendor hereby represents and warrants that the Software will substantially conform to the Documentation in effect on the date of purchase of the Paid License for the Software when given normal, proper, and intended usage in compliance with Vendor’s instructions. In the event of a nonconformance, you agree to promptly report such nonconformance along with all information required by Vendor. Vendor shall investigate any such reported nonconformance and shall use commercially reasonable efforts to remedy such nonconformance.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, VENDOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. VENDOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, VENDOR DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE OR THE SERVICES AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE AND THE SERVICES.
- DISCLAIMER FOR THE TRIAL LICENSE. Vendor hereby disclaims any and all warranty for the Software licensed under the Free License and is provided to you “AS IS” without warranty of any kind, whether express, implied, statutory, or otherwise. Vendor bears no liability for any damages resulting from the Software or the Services licensed under the Free License.
- DISCLAIMER FOR SOFTWARE RESULTS. Vendor hereby disclaims any and all warranty, expressed or implied, for the accuracy, reliability or completeness of results from the Software. You are solely responsible for determining the appropriateness of using results from the Software. You agree to assume all risks associated with the use of results from the Software.
- GOVERNING LAW. This Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.
- FORCE MAJEURE. If the performance of Vendor under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of Vendor, then Vendor shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
- SEVERABILITY. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
- NO ASSIGNMENT. You may not assign this Agreement or any of the rights granted by Vendor hereunder, in whole or in part, without the prior written consent of Vendor, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
- EXPORT CONTROL. You agree to obey and comply with any and all applicable United States laws, rules, and regulations governing the export of software.
- ARBITRATION. All disputes arising out of or relating to this Agreement shall be finally settled by arbitration conducted in San Jose, California, administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Both parties shall bear equally the cost of arbitration (exclusive of legal fees and expenses, all of which each party shall bear separately). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, if a party breaches its obligations under this paragraph, the nonbreaching party may seek injunctive or other equitable relief in any court of competent jurisdiction.
- ACKNOWLEDGEMENT AND EXCLUSIVITY. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND VENDOR, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND VENDOR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE PARTIES.