This End User License Agreement (“Agreement“) is a binding agreement between you (“End User” or “you“) and Dealers1 (“Company“). This Agreement governs your use of the Halo Device (the “Halo Device“) and Halo Application (including all related documentation, the “Application“). The Application is licensed, not sold, to you. Although the Halo Device is in the vehicle that you purchased from Your Car Dealership (“Car Dealer“) and the Application relates to the Halo Device installed in that vehicle, you acknowledge that Car Dealer is not providing any services, undertaking any duties or obligations or making any representations regarding the Halo Device or the Application.
BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
a) download, install, and use the Application for your personal, non-commercial use on a mobile device (“Mobile Device”) strictly in accordance with the Application’s documentation; and
b) access, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and for the Content and Services as set forth in Section 5.
2. License Restrictions. Licensee will not:
a) copy the Application, except as expressly permitted by this license;
b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part of the Application;
d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy of the Application;
e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights to the Application other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions under this Agreement. Company and its licensors and service providers reserve and will retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights in the Application or relating to the Application, except as expressly granted to you in this Agreement.
4. Collection and Use of Your Information.
c) Anonymization of Data and System Usage. You acknowledge that Company compiles, stores, and uses anonymized data and system usage information to provide, monitor, and improve the Application and the Content and Services (as defined in Section 5) and for the creation of new products. This anonymized data is not associated with any particular Device and therefore cannot individually identify you or your vehicle.
6. Geographic Restrictions. The Content and Services are based in the state of Oregon in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access to the Content or Services may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
a) the Application will automatically download and install all available Updates; or
b) you may receive notice of or be prompted to download and install available Updates.
You will promptly download and install all Updates and acknowledge and agree that the Application or portions of Application may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
8. Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications, and other products, services or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials“). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, privacy policies, use of data, or any other aspect of the Third Party Materials. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links to Third Party Materials are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
9. Term and Termination.
a) The term of the Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 9.
b) You may terminate the Agreement by informing the Company in writing that you no longer want the Halo Device to communicate with the Application and collect data about your vehicle. Company will then either remove the Halo Device or send a termination code to the Halo Device that will cease all data collection by the Halo Device.
c) This Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
d) Upon termination:
i) all rights granted to you under this Agreement will also terminate; and
ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
e) Termination will not limit any of Company’s rights or remedies at law or in equity.
10) Replacement and Repair of the Halo Device. If the Halo Device fails, the Car Dealer will replace the Halo Device at no cost to you.
11) Disclaimer of Warranties. THE APPLICATION AND HALO DEVICE ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION OR HALO DEVICE WILL ACCURATELY PROVIDE OR DISPLAY VEHICLE INFORMATION, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION, THE HALO DEVICE, OR THE CONTENT AND SERVICES FOR:
a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR
b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Application.
14. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You will not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
15. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
16. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
17. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application will be instituted exclusively in the federal courts of the United States or the courts of the State of Oregon in each case located in the city of Portland and the county of Multnomah You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
19. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power under this Agreement will operate as a waiver of that right or power, nor will any single or partial exercise of any right or power under this Agreement preclude further exercise of that or any other right under this Agreement. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement will govern.