End User License Agreement
Adara Technologies Inc. (“Adara”)
myCatapulTVe®
EULA
IMPORTANT-READ CAREFULLY: By downloading, installing, accessing or otherwise using the Software, User agrees to be bound by the terms of this EULA. If User does not agree to the terms of this EULA, then User must not download, install, access or use the Software.
A copy of this EULA is available online at www.myCatapulTVe.com/EULA.
ARTICLE 1.00 – DEFINITIONS
1.1 “EULA” means this end user license agreement between Adara and User;
1.2 “Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trade-marks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered;
1.3 “License” means a license granted under Section 2.1;
1.4 “Person” means an individual, partnership, corporation or other legal entity;
1.5 “Personal Information” means information about an identifiable individual;
1.6 “Software” means Adara’s proprietary software “myCatapulTVe®” and any updates, enhancements (which may include third party software), versions or renditions thereto; and
1.7 “User” means you, the individual, partnership, corporation or other legal entity receiving the grant of the License herein.
ARTICLE 2.00 – GRANT OF LICENSE
2.1 Grant of License. Adara grants User a personal, limited, non-exclusive, non-transferrable, revocable license to use 1 copy of the Software solely for User’s personal use subject to the provisions of this EULA. The license granted to User will be for use of object code only.
2.2 Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for any reason.
2.3 Third Party Software. Any third party software, documentation, web pages, videos, web services or other items whatsoever that are included or imbedded in the Software or accessible via the Software or www.myCatapulTVe.com, which are accompanied by their own license agreements or terms of use, are governed by such agreements or terms of use rather than this EULA. Adara’s licensors shall have no liability of any kind under this EULA, and Adara’s liability with respect to any third party software or other items embedded in the Software shall be subject to Section 7.4.
ARTICLE 3.00 – RESTRICTIONS; OWNERSHIP
3.1 License Restrictions. User may not loan, rent, lease, sub-license, assign, transfer or convey the Software, to another Person whatsoever.
3.2 Decompilation. User may not modify, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, disassemble or otherwise attempt to derive source code from the Software.
3.3 Copyright. User may not remove any copyright or other proprietary notices on or in any copies of Software.
3.4 No Violation. User may not violate or circumvent any technological restrictions within the Software or specified in this EULA, such as via software or services.
3.5 Ownership of Software. The Software (including any images, photographs, animations, video, audio, music, text and ‘applets’ incorporated into the Software), all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Adara and its licensors. Your rights to use the Software shall be limited to those expressly granted in this EULA. No other rights with respect to the Software or any related Intellectual Property Rights are implied. User is not authorized to use (and shall not permit any third party to use) the Software or any portion thereof except as expressly authorized by this EULA. Adara reserves all rights not expressly granted to User. Adara does not transfer any ownership rights in any Software. This EULA does not grant User any rights in connection with any trade-marks or service marks of Adara, its suppliers, or its licensors.
3.6 Ownership of Content. All Intellectual Property Rights in and to the content that does not form part of the Software, but which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties.
ARTICLE 4.00 – SUPPORT
4.1 Support. Adara does not provide any support for the Software under this EULA. User has no rights to any updates, enhancements to the Software or new versions or renditions of the Software developed by Adara.
4.2 Customer Service. Should User have any questions concerning this EULA, please email adara.support@adara-tech.com. To resolve any and all technical issues experienced by User, please contact your cable/video service provider.
ARTICLE 5.00 – DATA PRIVACY
5.1 Data Privacy. User agrees that Adara may process technical and related information about User’s use of the Software which may include internet protocol address, general location (if User enables device Location Services), hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics to improve its products and the Software, to facilitate updates, support, invoicing or online services, or to provide customized services or technologies to User or User’s content provider. Adara may disclose this information to others, but not in a form that personally identifies User. To the extent that this information constitutes Personal Information, Adara shall comply at all times with its obligations under applicable federal or provincial legislation.
ARTICLE 6.00 – WARRANTIES
6.1 Software Warranty. Adara represents and warrants as follows:
(i) Adara has the absolute right to grant the License;
(ii) The Software does not infringe any patent, trade-mark or copyright of any third party; and
(iii) upon delivery, the Software shall contain no viruses.
6.2 Disclaimer of Warranty. OTHER THAN THE WARRANTIES CONTAINED IN SECTION 6.1 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND ADARA AND ITS LICENSORS MAKE NO OTHER WARRANTIES UNDER THIS EULA WITH REGARD TO THE SOFTWARE AND DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. ADARA AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET USER’S REQUIREMENTS. ADARA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY HARDWARE USED BY USER IN CONNECTION WITH THE SOFTWARE.
ARTICLE 7.00 – INDEMNIFICATION
7.1 Indemnity. Adara shall indemnify and hold User harmless from all damages, costs and expenses incurred as a result of any threatened or actual suit, proceeding, claim or demand of any nature in connection with any breach of the warranties in Section 6.1 above, provided that Adara is notified promptly in writing and is given complete authority by User required for the defense of same and further provided that the Software has not been modified, changed or amended in any way.
7.2 Exclusions. Notwithstanding the provisions of Section 7.1, Adara will have no obligation under this Article 7.00 or otherwise with respect to any claim based on: (a) a combination of the Software with non-Adara products; (b) use of the Software for a purpose or in a manner for which the Software was not designed; (c) use of any older version of the Software when use of a newer Adara version would have avoided the infringement; (d) any modification to the Software made without Adara’s express written approval; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by Adara into the Software.
7.3 No Other Liability for Damages. Except as set forth above in this Article 7.00 and except for any breach by Adara of its obligations set forth in Section 5.1 of this EULA, Adara shall not be liable for any damages of any nature or kind whatsoever arising out of the grant of the License hereunder or from or out of the use of, misuse of, malfunctioning of or inability to use the Software, even if Adara has been advised of the possibility of such damages.
7.4 No Liability for Consequential Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THIS EULA, NEITHER ADARA NOR ITS LICENSORS WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, EXPECTANCY, REMOTE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOST DATA, BUSINESS INTERRUPTION, OR UNMET EXPECTATIONS (WHETHER FORESEEABLE OR NOT), ARISING OUT OF OR IN CONNECTION WITH THE GRANT OF THE LICENSE HEREUNDER OR FROM OR OUT OF THE USE OF, MISUSE OF, MALFUNCTIONING OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ADARA HAD BEEN ADVISED OR MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGE, LOSS OR LIABILITY IS BASED ON TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF CONTRACT (INCLUDING, WITHOUT LIMITATION, A FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM, OR FAILURE OF AN ESSENTIAL PURPOSE), WARRANTY, STRICT LIABILITY OR OTHERWISE.
ARTICLE 8.00 – CHANGES
8.1 Amendments to EULA. Adara reserves the right to amend this EULA at any time, and from time to time, in its sole discretion, and the amendments will be effective when posted on www.myCatapulTVe.com or when Adara notifies the User by other means.
8.2 New Versions of Software. New versions of the Software may be released in User’s environment without User’s prior written consent and without notice. The User’s continued use of the Software indicates User’s agreement to the new version of the Software.
8.3 Feedback. Adara may use your feedback, suggestions, or ideas in any way, including in future modifications of the Software, other products or services, advertising or marketing materials. User grants Adara a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback User provides to Adara in any way.
ARTICLE 9.00 – TERMINATION
9.1 Termination. Adara may immediately, in its sole discretion and without notice, terminate this EULA if User fails to comply with any provisions of this EULA.
9.2 Effect of Termination. Upon termination, (a) the License is terminated and all Licensed rights to all Software granted to User under this EULA will immediately cease; and (b) User must immediately cease all use of all Software. Section 2.3 (Third Party Software), Article 3.00 (Restrictions; Ownership), Section 6.2 (Disclaimer of Warranty), Section 7.4 (No Liability for Consequential Damages) and Article 9.00 (Termination) will survive and remain in effect even if the License is terminated.
ARTICLE 10.00 – GENERAL PROVISIONS
10.1 Entire Agreement. This EULA constitutes the entire agreement between the parties pertaining to the subject matter of this EULA and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.
10.2 Enurement. This EULA shall enure to the benefit of and shall be binding upon the parties and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns
10.3 Validity. If any provision of this EULA is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall not affect the validity, legality or enforceability of any other provision of this EULA and such invalid, illegal or unenforceable provision or part shall be deemed to be severed from this EULA and this EULA shall be construed and enforced as if such invalid, illegal or unenforceable provision or part had never been inserted in this EULA.
10.4 Waiver. No waiver of any provision of this EULA shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. No forbearance by any party to seek a remedy for any breach by any other party of any provision of this EULA shall constitute a waiver of any rights or remedies with respect to any subsequent breach. No waiver by either Party of any of such rights is effective unless it is signed in writing.
10.5 Governing Law. This EULA is governed by the laws of the Province of Ontario, Canada. Each of the parties hereto irrevocably attorns to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation which may arise hereunder in the courts located in the Judicial Region of Toronto, Province of Ontario.
10.6 Construction. The headings of sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word ‘including’ means “including but not limited to”.