BACKGROUND. P97 Networks, Inc. (hereinafter, “P97”) has developed a proprietary software application known as PetroZone® (the “App”) and an attendant website at P97.com and petrozone.com (hereinafter, the “Website”) collectively, the Licensed Software (“Licensed Software”). By using the Licensed Software, any portion thereof, and/or its accompanying manuals (the “Documentation”) and together with the Software (the “Licensed Software”), you (the “End User”) agree with P97 to be bound by the terms and conditions set forth herein. P97 is willing to permit you to use the Licensed Software only upon the condition that you accept and comply with all of the terms of this agreement (hereinafter, the “Agreement”). Please note that This Agreement is between you and the P97 only, and not [Apple, Inc. (“Apple”) or Google, Inc. (“Google”)]. P97, and not [Apple or Google], is solely responsible for the Licensed Software. Although not a party to this agreement, [Apple or Google] has the right to enforce this Agreement against you as a third party beneficiary relating to your use of the App.
THEREFORE, for good and valuable consideration, including the rights and license granted in this Agreement, and intending to be legally bound, P97 and the End User agree as follows:
1. LICENSE GRANT. Subject to the terms and conditions of this Agreement, P97 hereby grants to the End User a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Licensed Software on any mobile device or personal computer that the End User owns or controls in accordance with the terms and conditions set forth in this Agreement. The End User may not rent, lease, lend, sell, redistribute or sublicense the Licensed Software. The End User may not copy (except as expressly permitted by this Agreement) the Licensed Software. In addition, any commercial copying or distribution, publication or exploitation of the App, the Website, or any content, software, code, data or materials on or from the Licensed Software, are strictly prohibited unless the End User has received express prior written permission from P97 or the applicable rights holder. Any attempt to do so is a violation of the P97’s rights. If the End User breaches these restrictions or the Restrictions on Use, the End User may be subject to prosecution and damages. The terms of this Agreement will govern any upgrades provided by the P97 that replace and/or supplement the service, unless such upgrade is accompanied by a separate license in which case the terms of that license shall govern.
2. RESTRICTIONS ON USE. The End User shall use the Licensed Software strictly in accordance with these terms and conditions and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Licensed Software; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the App, any updates thereof, or any part thereof (unless the forgoing restriction is prohibited by applicable law, or permitted by the licensing terms governing any use of any open source components of the Licensed Software, if any); (c) violate any applicable laws, rules or regulations in connection with the End User’s access to or use of the App.; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Provider or its affiliates, partners, suppliers or the licensors of the Licensed Software; (e) use the Licensed Software for any revenue-generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) distribute the App to multiple mobile devices; (g) make the Licensed Software available over a network or other environment permitting access or use by multiple mobile devices or users at the same time; (h) use the Licensed Software for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by the Provider; (i) use the Licensed Software to send automated queries to any website or to send any unsolicited commercial email; (j) use any proprietary information or interfaces of the Provider or other intellectual property of the Provider in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Licensed Software; (k) the End User may not (A) attempt to circumvent user authentication or the security of any host, network, or account (aka “cracking”), including, but not limited to, accessing data not intended for the End User, logging into a server or account that the End User is not expressly authorized to access, or probing the security of P97 servers and networks, or (B) create a denial of service, impede the operation of the Licensed Software or engage in any activities that adversely affect the ability of other end users to use the Licensed Software; or (l) the End User may not upload, share or otherwise transmit any content that (A) the End User does not have a right to upload, share or transmit under any law or under contractual or fiduciary relationships; or (B) violates anyone’s copyright, trademark or other proprietary right.
P97 responds to notices of alleged infringement that comply with the Digital Millennium Copyright Act. The End User acknowledges and agrees that in addition to any other rights or remedies that P97 may have hereunder, P97 may remove or disable access to allegedly infringing content, or disable certain functionality, such as sharing, in the event of an alleged infringement.
3. TERMINATION. Without prejudice to any other rights, P97 may terminate this Agreement (a) if the End User fails to comply with any of the terms and conditions of this Agreement or (b) if the End User is accessing the services associated with the Licensed Software under the terms of an agreement between P97 and the End User’s organization, and such agreement with the End User’s organization is terminated. In the event of any termination, the End User shall immediately discontinue any further use of the Licensed Software and (if applicable) destroy all copies of the Licensed Software and Documentation in its possession or control. Applicable sections shall survive any termination of this Agreement.
In addition, if the End User has any data hosted by P97, P97 may destroy any data or information stored on its servers by or on behalf of the End User. The End User appreciates that such data and information will be permanently lost.
4. PROPRIETARY RIGHTS. End User acknowledges that all intellectual property rights in the Licensed Software, including without limitation, all copyrights, trademarks, patents and trade secrets, are owned by P97 or its third party licensor(s). Except as expressly set forth in this Agreement, P97 neither assigns any intellectual property rights, nor grants any licenses or other rights with respect to the Licensed Software. The End User shall use reasonable care to protect such intellectual property rights of P97 and/or its third party licensor(s), and to prevent the unauthorized use or copying of the Licensed Software.
5. NO WARRANTY. THE LICENSED SOFTWARE AND ALL CONTENT, INFORMATION AND TECHNOLOGY CONTAINED THEREIN ARE BEING PROVIDED TO THE END USER “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. P97 DOES NOT MAKE ANY WARRANTY THAT THE SOFTWARE IS COMPATIBLE OR OPERABLE WITH THE END USER’S COMPUTER EQUIPMENT OR SOFTWARE, OR THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR FREE OF ERRORS. THE END USER AGREES THAT THE LICENSED SOFTWARE IS NOT CONSUMER GOODS FOR PURPOSES OF FEDERAL OR STATE WARRANTY LAWS.
No sales person or other representative involved in the licensing of the Licensed Software is authorized to make any warranties with respect to the Licensed Software. Oral statements do not constitute warranties, shall not be relied upon by the End User, and are not a part of this Agreement.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL P97 OR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY “P97 PARTIES”) BE LIABLE OR RESPONSIBLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF P97 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE PARTIES’ TOTAL AGGREGATE LIABILITY TO THE END USER FOR ALL DAMAGES OF ANY KIND AND TYPE (REGARDLESS OF WHETHER BASED IN CONTRACT OR TORT) SHALL NOT EXCEED THE PURCHASE PRICE OF THE LICENSED SOFTWARE.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
8. INJUNCTIVE RELIEF. The End User agrees that P97 will have the right to obtain an injunction against any unauthorized use of the Licensed Software by the End User, in addition to any other rights and remedies to which P97 may be entitled.
9. SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision shall be adjusted to the minimum extent necessary for validity or enforceability, and in any event, the remaining provisions will nevertheless remain in full force and effect.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement between P97 and the End User with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications with respect thereto. This Agreement may not be modified, except to the extent of a written agreement to do so by an authorized representative of P97.
11. CHOICE OF LAW. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the internal laws of the State of Texas, without regard to its principles of conflicts of law.
12. NO ASSIGNMENT. The End User shall not assign, sub-license or delegate any of its rights or obligations under this Agreement to any third party without the prior written consent of P97. Any assignment, sublicense or delegation in violation of this provision shall be null and void.
13. ACKNOWLEDGMENT. To use the Licensed Software, the End User may be required to register. In doing so, the End User must accept the terms and conditions of this Agreement. Use of the Licensed Software affirms that the End User has read this Agreement, understands it, and agrees to be bound by its contents.
THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL NOT APPLY IF YOU HAVE OBTAINED ACCESS TO THIS LICENSED SOFTWARE PURSUANT TO A MULTI-USER OR INSTITUTIONAL LICENSE. UNDER SUCH CIRCUMSTANCES, YOUR USE OF THIS LICENSED SOFTWARE SHALL BE GOVERNED SOLELY BY THE TERMS AND CONDITIONS OF THE MULTI-USER OR INSTITUTIONAL LICENSE.