(a) “Mobile Application” means the executable code version of the software provided by Field59, including associated documentation and services, designed to run on some mobile devices
(b) “Update” or “Upgrade” means a revision to the Mobile Application; such revision may or may not be designated by a change in the version number.
2. License Grant
Subject to the terms and conditions of this EULA, Field59 grants you a non-exclusive, non-transferable, non-assignable license (without right to sublicense) to install and use one copy of the Mobile Application on a single mobile device that you own and control (the “Device”), solely in machine executable object code form and solely for your personal use.
3. Updates and Upgrades
4. Restrictions on Use
You may not: (i) modify or create any derivative work of the Mobile Application, any Update, or any Upgrade; (ii) decompile, disassemble, reverse engineer, or attempt to derive the source code of the Mobile Application, any Update, or any Upgrade; (iii) defeat, bypass, or otherwise circumvent any software protection mechanisms in the Mobile Application, any Update, or any Upgrade (except to the extent applicable laws specifically prohibit such restriction); (iv) distribute, redistribute, encumber, sell, rent, lease, sublicense or otherwise transfer the Mobile Application, any Update, or any Upgrade; (v) use the Mobile Application, any Update, or any Upgrade in a timesharing or service bureau arrangement; (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Mobile Application, any Update, or any Upgrade; (vii) use the Mobile Application, any Update, or any Upgrade on any device that you do not own or control; or (viii) distribute or make the Mobile Application, any Update, or any Upgrade available over a network where it could be used by multiple devices at the same time. The Mobile Application, any Update, and any Upgrade may not be used for any revenue generating or broadcast activities or for creation of any physical or electronic media or content for distribution or sale. If you breach this Section 4 or any other material provision of this EULA, you may be subject to prosecution and damages.
5. Third Party Materials
(a) The Mobile Application may enable you to access content, data, information, applications or materials provided by third parties, or by Field59’s clients, suppliers, licensors, advertising partners or service vendors (“Third Party Materials”). The Mobile Application may also provide links to certain third party web sites. Use of the Mobile Application to access Third Party Materials or third party web sites may require Internet access as well as your acceptance of additional terms of service not controlled by Field59.
(b) You understand that by accessing any Third Party Materials or third party web sites, you may encounter content that may be deemed offensive, indecent or objectionable. Such Third Party Materials and third party web sites may or may not be identified as having explicit language, and the results of any search may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree that access to the Third Party Materials and third party websites is at your sole risk and that Field59 shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
(c) By accessing Third Party Materials or third party web sites, you acknowledge and agree that Field59 is not responsible for evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or third party web sites. Field59 does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials or third party web sites, or for any other materials, products or services of third parties. Third Party Materials and third party web sites may be provided solely as a convenience to you. FIELD59 MAKES NO REPRESENTATION OR WARRANTIES REGARDING THIRD PARTY MATERIALS OR THIRD PARTY WEBSITES, AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS ARISING FROM THE USE THEREOF (UNLESS SUCH LIABILITY DISCLAIMER IS PROHIBITED BY LAW), EVEN IF DOWNLOADED OR MADE AVAILABLE FROM THE MOBILE APPLICATION OR BY MEANS OF A LINK INSIDE THE MOBILE APPLICATION.
(d) You agree that Third Party Materials may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright laws, and that you will not use such proprietary content, information or materials in any way whatsoever that violates or infringes upon any intellectual property or other laws. No portion of the Third Party Materials may be reproduced in any form or by any means without the express written permission of the owner of the rights in the Third Party Materials. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Materials, in any manner, and you shall not exploit the Third Party Materials in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
(e) You further agree not to use the Third Party Materials or third party web sites in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Field59 is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of accessing any of the Third Party Materials or third party web sites.
(f) Third Party Materials and third party web sites that may be accessed from, displayed on or linked to from the Mobile Application are not available in all languages or in all countries. Field59 makes no representation that the Third Party Materials and third party web sites are appropriate or available for use in any particular location. To the extent you choose to access such Third Party Materials or third party web sites, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Field59, its licensors, and its suppliers reserve the right to change, suspend, remove or disable access to any Third Party Materials or third party web site at any time without notice. In no event will Field59 be liable for any removal of or disabling of access to any such Third Party Materials or third party web sites. Field59 may also impose limits on the use of or access to Third Party Materials and third party web sites, in any case and without notice or liability.
6. Consent to Electronic Notice
You agree to receive all notice and communications (“Notices”) from Field59 in electronic form either (a) through the Mobile Application; (b) or at your email address if for any purpose under this EULA you provide Field59 with your email address. Delivery of any Notice from Field59 is effective when sent by Field59, regardless of whether you actually receive or read the Notice. If you have provided your email address and do not wish to consent to electronic notice, you must uninstall and discontinue all use of the Mobile Application.
The Mobile Application, including any and all Updates and Upgrades, are protected by United States copyright law and international treaty provisions. You acknowledge that the Mobile Application, including any and all Updates and Upgrades, contain proprietary trade secrets of Field59, its suppliers and its licensors. The Mobile Application, including any and all Updates and Upgrades, are licensed, and not sold, to you under this EULA. You have no ownership rights in the Mobile Application, including any and all Updates or Upgrades. Field59, its suppliers, and its licensors retain all right, title, and interest in and to all copies of the Mobile Application, including any and all Updates and Upgrades, (including any changes, modifications or corrections thereto) and any related documentation. Field59, its suppliers, and its licensors may use in any manner and without limitation all comments, suggestions, complaints and other feedback you provide (“Suggestions”). You will be entitled to no compensation or credit for, nor gain any right, title or interest in or to, any product or service of Field59, its suppliers, or its licensors that incorporates or otherwise is based on your Suggestions, including without limitation any upgrades or changes to the Mobile Application, any Updates, any Upgrades or Third Party Materials. All rights not expressly granted to you are reserved to Field59, its suppliers, and its licensors.
You agree to indemnify, hold harmless, and at Field59’s request, to defend Field59, its suppliers, and its licensors from any and all costs, damages and reasonable attorneys’ fees resulting from any breach of this EULA or any allegation or claim that your use of the Mobile Application, any Update or any Upgrade has violated any right of any third party or violated any law.
The license is effective until terminated by you or Field59. You may terminate this license at any time for any reason without prior notice to Field59. Field59 may terminate this license at any time for any reason without prior notice to you. Your rights under this license will terminate automatically without notice from Field59 if you fail to comply with any term(s) of this license. Upon termination of this license for any reason, you shall cease all use of the Mobile Application, and destroy all copies, full or partial, of the Mobile Application. The respective rights and obligations of you and Field59 under the following provisions will survive termination: 4 (Restrictions on Use), 5 (Third Party Materials), 6 (Consent to Electronic Notice), 7 (Ownership), 8 (Indemnification), 9 (Termination), 10 (Disclaimer of Warranty), 11 (Limitation of Liability), and 16 (Miscellaneous).
10. Disclaimer of Warranty.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THIS MOBILE APPLICATION, ANY UPGRADE, OR ANY UPDATE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. INSTALLATION OF THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE OR YOUR DEVICE. EXCEPT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MOBILE APPLICATION, ALL UPDATES, AND ALL UPGRADES ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND FIELD59, FIELD59’S LICENSORS, AND FIELD59’S SUPPLIERS (COLLECTIVELY REFERRED TO AS “FIELD59” FOR THE PURPOSES OF THIS SECTION) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE MOBILE APPLICATION, ALL UPDATES, AND ALL UPGRADES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Field59 DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE, THAT THE FUNCTIONS CONTAINED IN THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FIELD59 OR A FIELD59 AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
USE OF THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE IS NOT FAA CERTIFIED AND MUST NOT BE USED FOR PRIMARY NAVIGATION. THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE MAY NOT BE USED FOR SAFETY OF LIFE APPLICATIONS, OR FOR ANY OTHER APPLICATION IN WHICH THE ACCURACY OR RELIABILITY OF THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. DO NOT ATTEMPT TO CONFIGURE THE MOBILE APPLICATION, ANY UPDATE, ANY UPGRADE, OR INPUT INFORMATION WHILE DRIVING. FAILURE TO PAY FULL ATTENTION TO THE OPERATION OF YOUR VEHICLE COULD RESULT IN DEATH, SERIOUS INJURY, OR PROPERTY DAMAGE. BY USE OF THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE, YOU ASSUME ALL RESPONSIBILITY AND RISK.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FIELD59 OR ITS DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, LICENSORS, AGENTS OR RESELLERS (“FIELD59 PARTIES”) BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE MOBILE APPLICATION, ANY UPDATE, OR ANY UPGRADE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF A FIELD59 PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FIELD59 PARTIES’ ENTIRE LIABILITY WILL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE, REPLACEMENT OF THE MOBILE APPLICATION OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AT FIELD59’S DISCRETION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIC DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE TO YOU. FIELD59 WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH OR USED WITH THE MOBILE APPLICATION, ANY UPGRADE, ANY UPDATE AND/OR ANY MATERIAL LINKED TO OR THROUGH SUCH CONTENT.
12. Export Controls
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin. You agree that you will not export or re-export the Mobile Application, any Update or any Upgrade in any form in violation of the laws of the United States or any foreign jurisdiction. By installing or using the Mobile Application, any Update, or any Upgrade, you represent and warrant that you are not (a) a national or resident of any country to which the United States has embargoed goods, or (b) on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial and Prohibition Orders. You agree to comply with all export and import laws and restrictions and regulations of the United States or any foreign nation, and not to export, re-export or import the Mobile Application, any Update, or any Upgrade in violation of such restrictions, laws or regulations.
13. Injunctive Relief
You acknowledge and agree that, notwithstanding any other provisions of this EULA, any breach or threatened breach of this EULA by you will cause Field59 irreparable damage for which recovery of money damages would be inadequate and that Field59 therefore may obtain timely injunctive relief to protect its rights under this EULA in addition to any and all other remedies available at law or in equity.
14. U.S. Government Users
The Mobile Application, including any Update or any Upgrade, is a “Commercial Item” as that term is defined at 48 CFR 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable. Consistent with 48 CFR 12.212 or 48 CFR 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Software are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
15. Consent to Use of Data
(a) You represent and warrant that you have all required legal capacity to enter into this EULA as a binding agreement. You must be eighteen (18) years old (or your state’s age of majority, if not 18) to execute this EULA.
(b) This EULA is subject to the laws of the state of Wisconsin. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. You agree that the exclusive jurisdiction and venue for any claim or dispute relating to or arising out of this EULA or its subject matter will be in the federal and state courts located in Dane County, Wisconsin, and you consent to personal jurisdiction in such courts.
(c) If any provision in this EULA should be held illegal or unenforceable, the other provisions of this EULA will remain in full force and effect.
(d) A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
(e) You may not assign or otherwise transfer by operation of law or otherwise this EULA or any rights or obligations herein. Field59 may assign this EULA to any entity at its sole discretion. This EULA will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
(f) Neither party will be in default or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
(g) This EULA constitutes the entire agreement between the parties with respect to the use of the Mobile Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless in writing and signed by Field59. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect.
17. End-User Terms Required by Apple.
(a) You acknowledge and agree that:
(i) this EULA is concluded between you and Field59, and not Apple, Inc. (“Apple”);
(ii) Field59 and its licensors and suppliers, and not Apple, are solely responsible for the Mobile Application;
(iii) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Mobile Application;
(iv) in the event of any failure of the Mobile Application to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the Mobile Application;
(v) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile Application;
(vi) Apple is not responsible for any claims that you have arising out of your use of the Mobile Application;
(vii) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third-party claim that the Mobile Application infringes that third party’s intellectual property rights; and
(viii) Apple and its subsidiaries are third party beneficiaries under this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) as third party to enforce this EULA against you.
(b) You represent and warrant that:
(i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(ii) you are not listed on any applicable U.S. Government list of prohibited or restricted parties.
(c) YOUR USE OF THIS MOBILE APPLICATION IS AT YOUR SOLE RISK.
Last Updated: 1/26/15