AUTHORIZED USER AGREEMENT
This Authorized User Agreement (this “Agreement”) is made and entered into by and between SPAR Solutions LLC, a Michigan limited liability company (“SPAR”) and the authorized user (“Authorized User”) effective as of the last date that Authorized User clicks an icon/popup/button/link, checks a box, and/or provides an electronic signature on a SPAR webpage indicating that Authorized User accepts and/or agrees to be bound by this Agreement (the “Effective Date”). SPAR and Authorized User are each a “Party,” and are, collectively, the “Parties” to this Agreement. Authorized User’s execution of this Agreement is a condition precedent for Authorized User being able to use SPAR’s subscription services (the “Services”) to SPAR’s proprietary mobile application software product(s) (i.e., including any updates) (each a “SPAR App”) provided by SPAR to Authorized User’s employer/prime contractor (the “Customer”) pursuant to SPAR’s Master Subscription Agreement with the Customer (the “Customer Agreement”). The Parties hereby agree as follows:
1. Services. SPAR grants Authorized User a limited, non-exclusive, non-transferrable, non-sub-licensable, revocable right in North America to use the Services during the Term solely for Customer’s internal business purposes in accordance with this Agreement and the Customer Agreement (collectively, the “Authorized Use”).
2. Term of Agreement; Termination. SPAR has the unrestricted right to terminate this Agreement and/or Authorized User’s access to the Services at any time for any reason. Subject to the foregoing, this Agreement shall commence on the Effective Date and shall continue in effect for so long as Authorized User continues to use the Services (the “Term”). After this Agreement expires or terminates, Authorized User must immediately stop using the Services. Authorized User acknowledges and agrees that after expiration or termination of this Agreement, SPAR will not be liable to Authorized User for damages, losses, costs or expenses of any kind due to the termination or expiration of this Agreement.
3. Ownership of IP Used for the Services. As between the Parties, Authorized User agrees that SPAR owns and shall retain all right, title, and interest in and to all the intellectual property in connection with the SPAR App and/or that is used to provide the Services (collectively, the “SPAR IP”). All discoveries, improvements, inventions, enhancements, error corrections, updates, and trade secrets, made or conceived by SPAR, Authorized User, or any third party, arising out of or relating to the SPAR IP, shall be the sole and exclusive property of SPAR and SPAR shall retain any and all rights therein, including, without limitation, the right to file any patent or copyright applications thereon. All rights not expressly granted to Authorized User are reserved to SPAR and no rights or licenses shall be deemed granted by implication, estoppel or otherwise.
4. Restrictions on the Use of the SPAR IP. Authorized User may access and use the SPAR IP solely for the Authorized Use. Without limiting the foregoing, Authorized User’s right to access and use the SPAR IP does not cover any portions of the SPAR IP that are not made available as part of the Services. Authorized User shall not, and shall not permit any other third party, to do any of the following: (i) assign, sell, transfer, loan, rent, lease, sublicense, distribute, timeshare, give away, throw away, discard, and/or make copies of the SPAR IP; (ii) alter, modify, and/or create derivatives of the SPAR IP; (iii) use all or any part of the SPAR IP for any purpose other than as expressly permitted by this Agreement, and/or to develop software and/or provide services that compete with the SPAR IP and/or the Services; (iv) reverse engineer, decompile, disassemble, and/or otherwise render in human readable form, all or any part of the SPAR IP; (v) apply any procedure or process to the SPAR IP in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code, source listings, and/or object code for the SPAR IP; (vi) use the SPAR IP in violation of applicable law, rule, and/or regulation, including the laws of copyright, trademark, obscenity, defamation; (vii) seek to compromise the security of the SPAR IP, and/or SPAR’s and/or its clients’ systems or networks by intentionally introducing viruses, worms, Trojan horses or other malicious code, tampering with security mechanisms, and/or other harmful means; (viii) violate the rights of any person through the transmission, storage, and/or display of information or data; (ix) knowingly create large bandwidth-consuming transactions and/or put an unusually large load on all or any part of the SPAR IP; and/or (x) remove, cover, and/or alter any of SPAR’s copyright notices and/or any trademarks, trade names, service marks and/or service names included in the SPAR IP.
5. Licenses; Other Authorized User Obligations. a. Customer hereby grants SPAR a worldwide, royalty-free, non-exclusive, unrestricted right and license to use, process, manipulate and create derivative works from: (i) the information and data provided by Authorized User in connection with the Services (“Authorized User Data”); and/or (ii) any suggestion, enhancement, request, recommendation, correction or other feedback provided by Authorized User related to the Services.
b. The Services are be provided in connection with non-SPAR provided products, services and/or applications (each a “Non-SPAR Application”). Accordingly, Customer and/or Authorized User must have and maintain, and must allow SPAR to access, Non-SPAR Applications. Authorized User agrees that SPAR does not warrant or support Non-SPAR Applications or other non-SPAR products or services. Accordingly, SPAR is not responsible for any disclosure, modification or deletion of any Authorized User Data resulting from SPAR’s or Authorized User’s access or use of any Non-SPAR Application or other non-SPAR products or services.
c. If Authorized User installs and/or uses the SPAR IP through an Android device, then Authorized User must agree to additional terms and conditions (the “Google Terms”) set forth by Google Inc. (“Google”). If Authorized User installs and/or uses the SPAR IP through an iOS device, then Authorized User must agree to additional terms and conditions (the “Apple Terms”) set forth by Apple Inc. (“Apple”). The Google Terms or the Apple Terms that apply to Authorized User are the “Device Software Terms” and the applicable entity benefiting from the Device Software Terms (i.e., Google or Apple) is the “Device Software Owner”. The Device Software Terms are in lieu of any license granted by the Device Software Owner to Authorized User to use the SPAR IP. The Device Software Terms are as follows:
(i) The Device Software Owner may, at any time and without notice, restrict, interrupt or prevent use of the Services, or delete SPAR IP from Authorized User’s device, or require SPAR to do any of the foregoing, and if so, Authorized User shall not be entitled to any refund, credit or other compensation from SPAR, the Device Software Owner, or any other third party.
(ii) SPAR is solely responsible for the SPAR IP. This Agreement is solely between SPAR and Authorized User. The Device Software Owner is not a party to this Agreement and does not have any obligation to Authorized User under this Agreement. Notwithstanding anything to the contrary in this Agreement, the applicable Device Software Owner and its subsidiaries are third-party beneficiaries of this Agreement, and have the right (and shall be deemed to have accepted the right) to enforce this Agreement against Authorized User.
(iii) The Device Software Owner has no obligation to provide maintenance and support for the SPAR IP. To the maximum extent permitted by applicable law, the Device Software Owner will have no warranty obligation whatsoever with respect to the SPAR IP, and the Device Software Owner will not be liable for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty with respect to the SPAR IP. The Device Software Owner shall not be responsible for addressing any claims by Authorized User, and/or any third party relating to the SPAR IP and/or Authorized User’s possession and/or use of the Services, including but not limited to (i) product liability claims, (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation. The Device Software Owner shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Services or Authorized User’s possession and use of the Services infringes a third party’s intellectual property rights.
(iv) The Device Software Owner is solely responsible for the Device Software Owner’s software, which includes, without limitation, Google Play for Google, and Apple’s applications in its application store for Apple.
(v) The Google Play marketplace is owned and operated by Google. Authorized User’s use of Google Play is governed by a legal agreement between Authorized User and Google consisting of the Google Terms of Service (currently found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (currently found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, Authorized User’s use of Google Play is subject to the Google Play Business and Program Policies (http://play.google.com/about/android-developer-policies.html). The Google Play Terms of Service, Google Play Business and Program Policies, and Google Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict.
(vi) Authorized User’s use of Apple’s applications must comply with Apple’s usage rules set forth in the Apple Media Services Terms and Conditions, which can be accessed and downloaded at: https://www.apple.com/legal/internet-services/itunes/us/terms.html.
6. Export Compliance. Authorized User represents and warrants that the SPAR IP will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a “terrorist-supporting” country, and Authorized User is not listed on any U.S. Government list of prohibited or restricted parties.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPAR AND/OR SPAR’S OWNERS, EMPLOYEES, CONTRACTORS, AFFILIATES, AND/OR ANY OF THE FOREGOING’S RESPECTIVE SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY CLAIMS AND/OR DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE, AND WHETHER SPAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS AND/OR DAMAGES, IN CONNECTION WITH: ANY THIRD-PARTY CLAIM; ANY PRODUCTS AND/OR SERVICES PROVIDED BY A THIRD-PARTY; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES; ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOSS OF USE, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS; ANY MATTERS BEYOND SPAR’S REASONABLE CONTROL; AND/OR ANY DIRECT DAMAGES IN EXCESS OF US$1,000.00.
8. Binding on Successors and Assignment. This Agreement shall be binding upon the Parties and each of their respective successors and permitted assigns. This Agreement may not be assigned by Authorized User without the prior written consent of SPAR.
9. Amendment. This Agreement may be updated and amended by SPAR at any time by providing Authorized User with notice of the same, and Authorized User’s continued use of the Services shall constitute Authorized User’s agreement to be bound by this Agreement, as updated and amended.
10. Choice of Forum & Law & Payment of Attorney Fees & Time to Bring Litigation. This Agreement is made in the State of Georgia. This Agreement shall be controlled, construed and enforced in accordance with the substantive laws of the State of Georgia, without regard to any laws related to choice or conflicts of laws. Any claim, dispute, or legal proceeding (“Litigation”) arising out of or in any way related to this Agreement shall be brought in any state or federal court within the State of Georgia to the exclusion of all other jurisdictions and venues. For any Litigation, in which a Party prevails over another Party, the reasonable attorneys’ fees, courts costs and Litigation expenses incurred by the prevailing Party in connection with such Litigation shall be paid for or reimbursed by the non-prevailing Party. ANY LITIGATION BROUGHT BY AUTHORIZED USER AGAINST SPAR MUST BE INSTITUTED WITH ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES OR BE DEEMED FOREVER WAIVED AND BARRED.
11. Notices. All notices under this Agreement shall be in writing (except where otherwise stated) and shall be addressed to the address set forth herein or to such other address as either Party may designate by notice pursuant hereto. Such notices shall be deemed to have been given when received.
12. Execution. This Agreement shall become effective, with both Parties being fully bound to this Agreement to the same extent as if both Parties had provided wet ink signatures to the end of this Agreement, upon Authorized User clicking an icon/popup/button/link, checking a box, and/or providing an electronic signature on a SPAR webpage indicating that Authorized User accepts and/or agrees to be bound by this Agreement.
13. Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be unenforceable in any respect, such provision shall be modified to be made enforceable, or if that is not possible, this Agreement will be construed as if such provision had never been contained herein.
14. Entire Agreement. Any exhibits to this Agreement are hereby incorporated into this Agreement by reference. This Agreement, including any exhibits, collectively embodies the entire agreement between the Parties with respect to the subject matter contained herein, the Parties have not relied upon any promises, representations, warranties, agreements, covenants or undertakings, other than those expressly set forth or referred to in this Agreement. This Agreement supersedes all prior or contemporaneous negotiations, understandings and agreements, whether written or oral, between the Parties with respect to the subject matter contained herein.
15. No Waiver. Any failure by SPAR to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision.
16. Survival. Notwithstanding the termination of this Agreement, Sections 2 through 16 of this Agreement, shall survive the termination of this Agreement, as well as any other provisions of this Agreement that should logically survive termination.