End User License Agreement
Please read the following carefully, as this end user license agreement ("EULA") is a legal agreement between 3Common Inc. ("3Common") and you (either an individual or the entity that you represent and referred to in this agreement as "LICENSEE"), the original purchaser of the 3Common mobile application embedded with 3Common proprietary software and intellectual property (the "Application") concerning LICENSEE's limited access to and use of the Application, which is made available through the Apple App Store and Google Play Store. Through the Application you may have access to certain services and functionality provided by 3Common. By using the Application you are indicating your acceptance of, and you agree to be bound by, the terms and conditions of this EULA which shall govern your access and use of the Application. By using the Application, you agree to the EULA. If you do not agree with the EULA, you may not use the Application.
In consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, 3Common and LICENSEE agree as follows:
- Ownership of Application: LICENSEE acknowledges and agrees that, save and except for the license explicitly granted by the EULA, all right, title and interest in and to the Application is the sole and exclusive property of 3Common. 3Common reserves all rights not expressly granted to LICENSEE hereunder, and for greater certainty, 3Common shall retain all intellectual property and other proprietary rights in and to the Application. Nothing in this EULA shall, or shall be deemed or construed to, assign, transfer or convey to LICENSEE any title, rights or interest in or to any intellectual property, including in or to the Application, other than the licenses specifically and expressly granted herein.
- Grant of Limited License: Upon LICENSEE’s use of the Application (and corresponding acceptance of the terms and conditions of this EULA), 3Common hereby grants to LICENSEE a limited, non-exclusive, personal, perpetual, non-transferable and revocable license to use the Application as and to the extent described in this EULA for as long as LICENSEE complies with the terms and condition of this EULA. 3Common reserves all rights not expressly granted to LICENSEE. For certainty, this EULA does not apply to or govern Licensee’s use of or access to the 3Common website, which is governed by and subject to separate terms and conditions.
- Permitted Use: Pursuant to the license granted to LICENSEE under this EULA, LICENSEE shall be permitted to use the Application only as intended and contemplated or directed by 3Common, provided that the Application may only be used for its personal and private use unless otherwise agreed to by 3Common.
- License Transferable: This EULA shall be binding upon and shall enure to the benefit of and be enforceable by each of the parties, their respective successors and permitted assigns. 3Common may assign this EULA without the consent of LICENSEE at any time.
- Copy Restrictions: Unauthorized copying or distribution of the Application is expressly prohibited.
- Use Restrictions: LICENSEE shall not: (a) modify, adapt or otherwise change the Application in any way for any reason or purpose; (b) to the maximum extent permitted by applicable law, reverse engineer, decompile, disassemble, or otherwise in any manner deconstruct all or any part of the Application; (c) create derivative works based on the Application; (d) except as expressly permitted by the EULA, provide, disclose, sublicense, distribute, transfer, assign or otherwise permit any third party to access, use, read or otherwise gain access to the Application ; or (e) use the Application to access any services or products of any 3Common competitor.
- Relief: LICENSEE agrees that damages would not be adequate remedy for any breach of this EULA affecting or related to a breach or misappropriation of 3Common's intellectual property rights in and to the Application. LICENSEE shall not interfere with, delay, obstruct, or prevent 3Common from taking any action to seek an interim and interlocutory equitable remedy to enforce any provision herein to protect its rights concerning the Application or other intellectual or proprietary rights. LICENSEE agrees not to contest, object to, or otherwise oppose an application for equitable relief by 3Common in such circumstances and LICENSEE waives any and all immunities from any equitable relief to which it may be entitled. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. LICENSEE agrees that the provisions of this Section are fair and reasonable and are necessary to protect 3Common’s intellectual property rights.
- Termination: This EULA is effective until and unless terminated. Subject to Section 13, this EULA will terminate automatically if LICENSEE fails to comply with any provision of this EULA. If LICENSEE is a business entity or other entity, any failure to comply with the terms and conditions of this EULA by any individual employed or engaged by such entity will be deemed a failure to comply by LICENSEE. Upon any termination, LICENSEE shall delete the Application.
- Warranty: THE APPLICATION IS PROVIDED ON AN "AS IS” BASIS, AND THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, CORRECTNESS, FUNCTIONALITY, RELIABILITY, ACCURACY, CURRENTNESS, OPERATION, USE OR THE RESULTS OF THE USE BY LICENSEE, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE (OR THAT ALL ERRORS CAN OR WILL BE CORRECTED) OR THAT THE APPLICATION WILL MEET LICENSEE’S REQUIREMENTS, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON OR EXCLUSIONS OF CERTAIN IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; THEREFORE THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN CERTAIN CIRCUMSTANCES. 3COMMON DISCLAIMS AND SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY AND ALL ACTS OF THIRD PARTIES. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE APPLICATION IS ASSUMED BY LICENSEE.
- Limitation: IN NO EVENT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW SHALL 3COMMON, ITS SHAREHOLDERS, AFFILIATES, CONTRACTORS, SUPPLIERS AND AGENTS AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES (COLLECTIVELY THE "3COMMON PARTIES") BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO LOSS OF, OR DAMAGE TO, DATA OR COMPUTER SYSTEMS OR RELIANCE ON ANY DATA DERIVED FROM LICENSEE’S USE OF THE APPLICATION, OR LOSS OF REVENUE OR PROFIT OR OTHER ECONOMIC LOSS) OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY LICENSEE OR ANY THIRD PARTY HOWSOEVER CAUSED AND WHETHER RESULTING FROM THE USE OF OR INABILITY TO USE THE APPLICATION OR OTHERWISE AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR 3COMMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 3COMMON PARTIES' TOTAL LIABILITY AND OBLIGATION TO LICENSEE, IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS EULA AND YOUR USE OF THE APPLICATION, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED AN AMOUNT THAT IS EQUIVALENT TO THE PURCHASE PRICE OF THE APPLICATION ACTUALLY PAID BY LICENSEE. THIS SECTION SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT.
- English Language: The parties declare that they have required that this agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarant par les présentes qu'elles exigent que cette entente et tous les documents y afférents, soit pour le présent ou le futur, soient rédigés en langue anglaise seulement.
- Jurisdiction: This EULA shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Manitoba, Canada. For the purpose of all legal proceedings this EULA shall be deemed to have been performed in the Province of Manitoba, Canada and the parties expressly confirm that the law of the Province of Manitoba is the proper law. The parties irrevocably attorn to the non-exclusive jurisdiction of the Courts of the Province of Manitoba in respect of all matters and disputes arising hereunder.
- General Provisions: No delay or omission by 3Common to exercise any right or power it has under this EULA or to object to the failure of any covenant of LICENSEE to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. Any waivers by 3Common must be in writing and signed by an authorized representative of 3Common. If any provision of this EULA is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of this EULA, or the application of such provisions to persons or circumstances other than those as to which itis invalid or unenforceable shall not be affected thereby, and each such provision of this EULA shall be valid and enforceable to the extent granted by law. The EULA constitutes the entire agreement between the parties as it relates to the license and use of the Application and the subject matter of this EULA and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral between 3Common and LICENSEE. The EULA may only be amended or supplemented by written agreement executed by each of the parties.