ABLE VIDEO APPLICATION
END USER LICENSE AGREEMENT
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS ABLE VIDEO APPLICATION END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE DOWNLOADING THE APPLICATION. BY DOWNLOADING THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT, AND ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD THE APPLICATION. “YOU” OR “YOUR” MEANS (1) THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT; (2) YOUR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU; AND (3) ANY OF YOUR CUSTOMERS USING THE APPLICATION OR ANY SERVICE BASED UPON THE APPLICATION, AS PERMITTED IN THIS AGREEMENT. YOU SHALL BE LIABLE AND RESPONSIBLE FOR ANY FAILURE BY YOU TO COMPLY WITH THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPIES OR USES THE APPLICATION AND ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPIES OR USES THE APPLICATION ON ANOTHER PERSON’S OR ENTITY’S BEHALF.
This Agreement is a binding agreement between You and Able Cloud Advisors, LLC, with an address of 50 Lambeth Loop, Fairport, New York 14450 (“Company”). This Agreement governs Your use of the Able Video Application (on any platform including Android or iOS platform and any other platform which may be applicable now or in the future) including all related documentation (collectively, the “Application”). The Application is licensed, not sold, to You.
1. License Grant. Subject to the terms of this Agreement and the payment of all subscription and other fees required to download and use the Application, Company grants You a limited, non-exclusive, non-sublicensable, nontransferable, revocable license to download, install and use a single copy of the Application on a device (mobile or otherwise) owned or otherwise controlled by You (“Device”) for Your use in conjunction with products and services made available to You by Salesforce and strictly in accordance with the Application’s documentation and this Agreement, and for so long as this Agreement is in effect.
2. Purchase of Application. Company shall make the Application available to You pursuant to this Agreement and all other relevant agreements, including those with Salesforce, during the term of Your subscription. Unless otherwise agreed in writing by Company, (a) the Application is purchased in accordance with this Agreement and such other agreements and the Application shall be downloaded and used only within the Salesforce platform and may be accessed by no more than the specified number of users listed (if applicable), (b) additional subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional subscriptions are added, and (c) any added subscriptions shall terminate on the same date as the pre-existing subscriptions. If user subscriptions are purchased, they cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer use the Application.
3. Further Requirements. As a condition to downloading and using the Application, You may be required to subscribe to or license software from one or more third parties. You may be required to: (a) install necessary applications or software for such use; (b) remain in good standing with Salesforce; and/or (c) maintain a current agreement and subscription for any Salesforce or other services required to use the Application (collectively, “Further Requirements”). Failure to comply with the Further Requirements may render the Application unusable or inaccessible. Company is not responsible for Your inability to purchase or access any Salesforce products or services. Any agreements to purchase or use any Salesforce services are solely between You and Salesforce unless otherwise agreed to by Company in writing. Company is not responsible for and does not warrant the performance of any Salesforce products or services.
4. License Restrictions. Except to the extent that any enumerated restriction is prohibited by applicable law, You shall not:
(a) copy the Application, except as expressly permitted by this Agreement;
(b) modify, translate or adapt the Application 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 thereof;
(d) remove, delete, alter or obscure any titles, trademarks, service marks, trade names, legends, watermarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, reproduce, publish, transfer or otherwise make available the Application, any features or functionality of the Application, or Your rights in and to the Application pursuant to this Agreement 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;
(f) use the Application (1) for the benefit of any person or entity other than You, (2) for any purpose other than Your own internal business purposes, (3) for any purpose other than its intended purpose; or (4) to develop or create a substantially similar or competitive application;
(g) interfere with or attempt to disrupt the integrity, performance or security of the Application of the Salesforce platform.
(h) unbundle, disassemble, break apart, or repackage the Application or any of its component parts for any reason whatsoever;
(i) provide use of the Application to any third party;
(j) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application;
(k) engage in activities when using the Application that:
(i) violate the law, court verdicts, resolutions or orders, or administrative measures that are legally binding;
(ii) may hinder public order or customs;
(iii) infringe intellectual property rights, such as copyrights, trademarks and patents, fame, privacy, and all other rights of the Company and/or a third party granted by law or contract;
(iv) post or transmit or use the Application to download or review any objectionable content including, but not limited to, violent or sexual expressions, expressions that lead to discrimination by race, national origin, creed, sex, social status, family origin, etc.;
(v) lead to the misrepresentation of the Company and/or a third party, or intentionally spread false information;
(vi) interfere with the servers and/or network systems related to the Application, such activities that abuse the Application and/or servers and/or network systems related to the Application by means of BOTs, cheat tools, or other technical measures;
(vii) exchange the right to use the Application into cash, property or other economic benefits without Company’s authorization;
(viii) use the Application for sales, marketing, advertisement, or soliciting; or
(ix) other activities that may be deemed by the Company to be harmful or inappropriate to the Application, Company or Salesforce.
(l) use the Application in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including, but not limited to, any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments.
Company shall have the sole and exclusive right to determine whether You have engaged in any of these restricted activities and to determine whether this Agreement should be terminated. Violations of this Agreement will not be tolerated by Company.
5. Proprietary Rights and Reservation of Rights. You hereby acknowledge and agree that:
(a) the Application and copies thereof are the exclusive proprietary technology of Company and are protected by copyright laws and international treaties as well as other intellectual property laws;
(b) the Application is provided under license, and not sold, to You;
(c) You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement;
(d) Company reserves and shall retain all rights not expressly granted to You including Company’s entire right, title, and interest in and to the Application, copies of the Application, and in all related copyrights, trade secrets, patents, trademarks, service marks, domain names and any other intellectual property and proprietary rights therein or relating thereto, including but not limited to any registrations, applications, renewals, and extensions of such rights, except as expressly granted to You in this Agreement;
(e) all title, ownership rights, and intellectual property rights in and to all content accessed through or using the Application (collectively, the “Content”) shall be retained by the applicable Content owner and may be protected by applicable copyright or other law, and you are granted no rights to use such Content, except as permitted through the use of the Application;
(f) Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Application any suggestions, recommendations or other feedback provided by You, all without any further compensation to You; and
(g) any unauthorized modifications, translations, adaptations, derivative works, or improvements of the Application or components thereof shall be exclusively owned by Company, and You hereby (i) assign and shall assign any and all rights, title, and interests in the foregoing to Company, (ii) will promptly sign any other documents necessary to perfect Company’s rights in and to the foregoing, and (iii) expressly waive any rights You may obtain inconsistent with the foregoing through application of law or otherwise.
6. Unauthorized Access. You shall use all commercially reasonable efforts to prevent unauthorized access to or use of the Application. You further agree to notify Company promptly of any unauthorized access or use.
7. Confidentiality You hereby acknowledge and agree:
(a) that the Application contains confidential information of Company, including, but not limited to, the code of the Application and the Company’s trade secrets, know-how and information relating to the Application’s underlying technology, and that any disclosure by You or any use by You outside of the scope of this Agreement of Company’s confidential information will cause immediate, irreparable harm to Company for which no adequate remedy at law exists, and for which equitable remedies, as well as any other available legal remedies, may be awarded by a court of competent jurisdiction;
(b) to maintain the confidentiality of the Application, and other confidential information of Company using at least as great a degree of care as You use to maintain the confidentiality of Your own confidential information and in no case less than reasonably prudent care; and
(c) to limit access to the Application to those persons employed by You and/or who are under Your direction who need to use the Application for purposes permitted hereunder and who have been clearly informed of their obligation and agree to maintain the confidentiality of the Application, and to use reasonable best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Application for the purpose of deriving the source code of the Application.
This Section 7 shall survive the expiration or termination of this Agreement.
8. Export Regulation and Geographic Restrictions. The Application may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall 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 shall 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 U.S. You acknowledge that You may not be able to access all or some of the Application’s content and services outside of the U.S. and that access thereto may not be legal by certain persons or in certain countries. If You access the Application’s content and services from outside the U.S., You are responsible for compliance with local laws.
9. Availability. Company will endeavor to make the Application available at all times except for downtime for scheduled or unscheduled maintenance and causes beyond Company’s control, including, but not limited to, those causes identified in the “Force Majeure” section below.
10. Updates. You agree that Company has no obligation to provide Application updates, which may include upgrades, bug fixes, patches, enhancements and other error corrections and/or new features, maintenance, technical or other support for the Application (collectively, including related documentation, “Updates”), or to continue to provide or enable any particular features or functionality. Company may from time to time, however, in its sole discretion develop and provide Application Updates without any notice to You. Updates may also modify or delete in their entirety certain features and functionality. Based on Your Device settings, when Your 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 shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof 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.
11. Customer Support. Company agrees to provide to You, during each calendar year while this Agreement is in effect, up to one-quarter of one hour of customer support services with respect to the Application at no charge. Unused customer support services in any calendar year may not be carried over into any subsequent year. You agree that any customer support services provided to You in excess of one-quarter of one hour per calendar year shall be subject to Company’s then-current standard hourly rate (which, as of the date of last revision of this Agreement, is $150.00) and shall be billed in increments of no less than one full hour. All charges for customer support services shall be paid within fifteen (15) days of invoice. Customer support services shall be performed by phone or electronically and only during the hours of 9:00 a.m. to 5:00 p.m. on weekdays, excluding holidays. Company does not promise or guarantee (a) any specific response time, or (b) that the customer support services provided by Company will resolve or provide a solution to any issue or error experienced in connection with the Application or its use.
12. Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications and other products services and/or materials), work in conjunction with third party services or content, 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 or any other aspect thereof. 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 thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such third parties’ terms and conditions.
13. Advertising. The Company may, from time to time, offer advertisements or other offers through or utilizing the Application. You consent to receive such advertisements and offers.
14. Term and Termination.
(a) The term of this Agreement commences when You download/install the Application and will continue in effect, unless sooner terminated by You or Company as set forth in this Section 14, until all subscriptions granted under this Agreement have expired or been terminated.
(b) Subscriptions for the Application commence on the date You download/install the Application and continue in effect until the expiration of the applicable subscription term. All subscriptions shall automatically renew for additional periods equal to the immediately preceding (and expiring) subscription term, unless either party gives the other advance written notice of termination at least thirty (30) days before the end of the relevant subscription term.
(c) Company may terminate this Agreement at any time and for any reason in its sole discretion upon no less than fifteen (15) days’ notice to You.
(d) This Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement.
(e) Company may immediately terminate this Agreement without notice to You if your agreement for the use of products and services offered by Salesforce expires or is terminated or You or otherwise cease being able to use the Salesforce platform.
(f) Upon termination:
(i) all rights granted to You under this Agreement will also terminate;
(ii) You must cease all use of the Application and delete all copies of the Application from Your Device and account;
(iii) You must make payment of all fees and other amounts then due and owing to Company; and
(iv) Unless Company terminated this Agreement for any reason other than without cause as contemplated under Section 14(c) above, You will not be entitled to any refund or other credit for any period of time remaining in the then-current subscription term.
(g) Termination will not limit any of Company’s rights or remedies at law or in equity.
15. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS 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 OWNERS, DIRECTORS, OFFICERS, MANAGERS, LICENSORS, SERVICE PROVIDERS, SUCCESSORS AND ASSIGNS (THE “COMPANY PARTIES”), 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, OPERABILITY, SUITABILITY, QUALITY, FREEDOM FROM VIRUSES, ABSENCE OF DEFECTS, 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 WILL MEET YOUR REQUIREMENTS, 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.
THE APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA THAT RESULTS FROM USE OF COMPANY’S SERVICES OR ANY THIRD PARTY OFFERINGS.
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.
16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY PARTIES HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE APPLICATION’S CONTENT AND SERVICES OR OTHERWISE UNDER THIS AGREEMENT 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, BREACH OF WARRANTY, 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. THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
17. Indemnification. You agree to defend, indemnify, and hold the Company Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with any of the following (including as a result of Your direct activities or those conducted on Your behalf): (a) Your download, access to, or use of the Application; (b) Your breach or alleged breach of this Agreement; (c) Your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (d) Your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (e) any misrepresentation made by You. You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You, and You will not in any event settle any claim without the prior written consent of Company. You agree that Company assumes no responsibility for the content You submit, make available, download or view through the Application. This Section shall survive the expiration or termination of this Agreement.
18. Entire Agreement. This Agreement sets forth Company’s entire liability and Your exclusive remedy with respect to the Application and supersedes the terms of any other communications or advertising with respect to the Application, whether made by Company or third parties. You acknowledge that this Agreement is a complete statement of the agreement between You and Company with respect to the Application and, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Application.
19. Headings. Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement.
20. Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
21. Assignment. You may not assign this Agreement or any right under or interest in this Agreement or delegate any obligations under this Agreement without the prior written approval of Company. Any attempted or purported assignment or delegation in violation of the preceding is void.
22. Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
23. Independent Contractors. This Agreement shall not be construed to create any employment, partnership, joint venture, franchise or agency relationship between You and Company or to authorize either party to enter into any commitment or agreement binding on the other party.
24. Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Application.
25. Force Majeure. Except for the obligation to pay money when due, neither party shall be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, Internet failures, security breaches, service attacks, default by subcontractors, providers or suppliers, acts of God or of the public enemy, terrorist act (or threat thereof), U.S. or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, restriction, strikes or freight embargos.
26. No Presumptions. If an ambiguity or question of intent arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the parties and the parties agree that any principle of construction or rule of law that provides that, in the event of any inconsistency or ambiguity, an agreement shall be construed against the drafter of the agreement shall have no application to the terms and conditions of this Agreement. Furthermore, no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this Agreement.
27. Publicity. You agree that Company may use, publish and distribute Your name and logo to identify You as a licensee and otherwise in connection with Company’s promotion of the Application.
28. Governing Law. This Agreement will be governed by the laws of the State of New York, without regard to its choice of law principles. You and Company agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any dispute arising out of or in connection with this Agreement, or any dispute between the parties arising from their relationship created by these this Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association (“AAA”) under its rules. The number of arbitrators shall be one (1). Any arbitration proceeding shall take place in Monroe County, New York, United States. Each party shall bear its own costs in the event of a dispute requiring arbitration. Notwithstanding the foregoing, Company has the right to pursue equitable relief in the state and federal courts located in Monroe County, New York, and You agree to the exclusive jurisdiction and venue of such courts.
29. Contact Information. If You have any questions, complaints, or claims regarding the Application, please contact Company at:
(i) Email: support@ablecloudadvisors.com
(ii) Phone: 001-585-739-5251
(iii) Address: Able Cloud Advisors, LLC, 50 Lambeth Loop, Fairport, New York 14450.
