End User License Agreement
Appello Technologies AB Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND APPELLO.
Remarks in this software license agreement regarding Apple Inc. and App Store Terms of Service are only valid for iOS users (including but not limited to iPhone or iPod touch).
This agreement (the “Agreement”) is made between Appello Technologies AB, (“Appello”) and you (the “Licensee”) and Apple Inc, has no responsibility under this Agreement whether for content, warranties, maintenance or support. By accepting this Agreement, you agree that Apple Inc is a third party beneficiary to this Agreement and that Apple hence may enforce the provisions of this Agreement against you as a third party beneficiary The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties and does not by reference incorporate the terms and conditions of this Agreement. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding which may involve this Agreement. This Agreement may not be modified except by a written contract executed by both parties hereto.
SECTION 1. GENERAL PROVISIONS.
1.1 Software. For the purpose of this Agreement, the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement and the supporting documentation for such will be referred to as the “Software”. The Software may contain portions of software being the sole property of third parties. Such software is provided subject to the terms and conditions of such third parties available at www.appello.se.
1.2 License. Subject to the terms and conditions set out herein Licensee is hereby granted a limited, non-exclusive, non-transferable right to use the Software on one (1) hardware device and to use the online services (hereinafter referred to as the “Services”) that Appello will make available from time to time. Terms for using the Software on iPhone and iPod touch are subject to the Usage Rules set forth in the App Store Terms of Service. Appello may cancel Licensee’s access to the Services at any time if Licensee is in breach of this Agreement or fails to pay any applicable service fees.
1.3 Restrictions. Appello reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof. This does however not restrict any acts in relation to any parts of the Software which are licensed under the license agreements set out in Section 3.5, to the extent such acts are not possible to restrict under such license agreements. Licensee may not use or provide the Software as a managed service provider, application service provider, in any commercial time share arrangement, or in any activity intended to directly produce revenue without the prior written approval from Appello. Licensee may not resell the Software licensed hereunder nor use the software to provide consulting or training services to third parties. Licensee shall not assign the Software to a third party without the prior written consent of Appello.
1.4 Limitation of Remedies and Damages. IN NO EVENT WILL APPELLO, APPLE INC, OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF APPELLO OR APPLE INC OR AN APPELLO OR APPLE INC REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. APPELLO’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO APPELLO FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST APPELLO LATER THAN ONE (1) YEAR FROM OCCURENCE OF THE INCIDENT THAT CAUSED LICENSEE THE ALLEGED DAMAGES. The provisions of this Section 1.4 allocate risks under this Agreement between Licensee and Appello. Appello’s pricing reflects this allocation of risk and limitation of liabilities.
1.5 Nondisclosure. “Confidential Information” means the Software, the Services, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and not generally available to the public, which the Receiving Party may gain access to or knowledge of as a result of this Agreement. The Receiving Party shall observe complete confidentiality with respect to the Confidential Information, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.
1.6 Personal data. The Licensee hereby gives its consent to that, for the purposes of providing the Services to Licensee and for the purposes of direct marketing, personal information, including but not limited to, the name, mobile phone number, make and model of mobile phone and other information regarding the Licensee may be gathered, retained and processed by Appello. Appello will, in order to facilitate activation and renewal of the Services at any time, retain such personal data in its databases during the term of Services and for a period of five (5) years from the date of expiry of the Services and for the purpose of direct marketing retain such personal data in its databases during the term of Services and for a period of one (1) year from the date of expiry of the Services. Licensee may, at any time, request that Appello discloses any registered data regarding Licensee (such request may be made free of charge once per year) and deletes any such retained personal data from its databases. Licensee who oppose that personal data is being processed for purposes concerning direct marketing shall give Appello notice hereof in writing.
1.7 Improvements of service. The application will collect anonymous data during usage, including but not limited to GPS data and mobile connectivity. This information does not contain any unique identifiers to your device, the application or you personally. This information is used to improve the accuracy of the traffic related Service, the maps, the application and for creating related new services. The collection of anonymous data can be disabled from the Settings menu in the application.
1.8 Assignment. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Appello and any purported assignment or transfer without Appello’s consent shall be null and void.
1.9 Injunctive Relief. Licensee hereby expressly agrees that Appello, in addition to any other rights or remedies which Appello may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
1.10 Warranties. LICENSEE AND APPELLO AGREE THAT THE SOFTWARE IS PROVIDED “AS IS” AND UNSUPPORTED, AND THAT NEITHER APPELLO NOR APPLE INC MAKES ANY WARRANTY AS TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. HENCE NO WARRANTY IS PROVIDED BY APPELLO, APPLE INC OR THEIR LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS.
1.11 Termination. This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Appello and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Appello, and (c) by Appello, immediately, if Licensee breaches this Agreement or fails to pay any applicable and due service fee charged by or on behalf of Appello. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to Appello within thirty (30) days after termination that Licensee has destroyed or returned to Appello such Software and all copies thereof. For the avoidance of doubt, Appello will immediately upon termination cease to provide the Services. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder. The provisions of the preamble and Sections 1.3, 1.4, 1.5, 1.8, 1.9 and 1.11 shall survive termination of this Agreement for any reason whatsoever.
SECTION 2. TRIAL EVALUATION.
The provisions of this Section 2 shall apply to Software downloaded and/or installed for temporary and/or trial use.
2.1 License. Subject to the terms and conditions of this Agreement, the Software and the Services is licensed Licensee by Appello for an agreed evaluation period (the “Evaluation Period”).
(a) Licensee may use the Software for its own internal evaluation and for no other purpose.
(b) Appello may end the evaluation period by terminating the Services without further notice.
2.2 After the expiry of the Evaluation Period, this license to use the Software and Services will automatically expiry unless converted into a license pursuant to section 1.2 above.
SECTION 3. TRAFFIC, MAP DATA, THIRD PARTY CONTENT, DOWNLOAD AND SERVICE COSTS
3.1 Traffic information. Appello is not liable for the quality of traffic information provided by third party providers.
3.2 Map data. Appello is not liable for the quality and accuracy of the map data.
3.3 Application content. Appello is not liable for keeping the application content unchanged over time. All content included in the application may change at any time without further notice.
3.5 Neither Appello nor its Agents can be held liable for local market Operator Service Charges information, or any indicative pricing stated in any literature. Price information is given as estimate costings in good faith.
3.6 The Software includes:
a) Micro Emulator (as modified by Appello 2008-2009), an emulator for running Java ME on various platforms. The MicroEmulator and the use thereof is supplied under and subject to the GNU Lesser General Public License, available at http://www.gnu.org/copyleft/lesser.html and the GNU General Public License available at http://www.gnu.org/licenses/gpl-3.0.html. You may obtain a complete machine-readable copy of the source code for the LGPL-licensed portions under the terms of LGPL, without charge except for the cost of media, shipping, and handling, upon written request to Appello, firstname.lastname@example.org; and
b) TinyLine software developed by Andrew Girow (http://www.tinyline.com/). TinyLine and the use thereof is supplied under and subject to the TinyLine license agreement available at http://www.tinyline.com/utils/tinylinegzip/TINYLINE_LICENSE.TXT.
SECTION 4. APPLICATION USAGE
4.1 Traffic accidents. Appello can not be held as liable for any traffic accidents or injuries related to distractions caused by the Software. The Licensee is solely responsible for using the software safely during driving.
4.2 Sending content. Always pay attention to road conditions and traffic laws while driving. If your country does not permit sending content while operating a vehicle you must wait until you have stopped in an appropriate location before doing so. Content may however be sent by a passenger as long as this action does not interfere with the driving and does not distract the driver.
4.3 Security. You are obliged to use your own personal judgment while using the application. If you feel that any of the instructions given by the application causes you to perform an unsafe or illegal maneuver, places you in an unsafe situation or directs you into an area that you consider to be unsafe, do not follow these instructions.
4.4 Delays. Appello is not liable for any delays or late arrivals caused by the application, nor for increased fuel costs or loss of income caused by these delays.
4.5 Legal issues. You may not use the application for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with this Agreement..
SECTION 5. APPLICABLE LAW
5.1 Applicable law. This Agreement, and any disputes, conflicts or claims under it, shall be governed by substantial Swedish law without regard to its principles of conflicts of law.
SECTION 6. LEGAL COMPLIANCE
6.1 You represent and warrant that you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country. You further represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties.
Appello Technologies AB (org.nr. 559000-6374)
Erik Dahlbergsgatan 34
SE-411 26 Göteborg