End User License Agreement
Momentum IoT, Inc. (“Momentum IoT,” “us” or “we”) is a provider of telematics software (the “Software”), which we provide to customers that have entered into a subscription agreement with us and to integration partners that have entered into an integrator services agreement with us (a “Provider”). By using the Software, either directly from us or by way of its integration in a product provided by a Provider and embedded in a tracking device or other hardware or equipment (a “Device” and together with the Software referred to herein, collectively, as the “Product”) and installed in a motor vehicle, you agree to the terms of this End User License Agreement (“EULA”) between you and Momentum IoT.
This EULA governs your access to and use of the Product. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF, YOUR EMPLOYER OR THE LEGAL ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT. YOUR CONTNUED USE OF THE PRODUCT INDICATES YOUR AGREEMENT TO THIS EULA.
Subject to and conditioned upon your strict compliance with the terms of this EULA, Momentum IoT hereby grants you a non-exclusive, non-transferable, non-sublicensable right to access and use the Product during the term of this EULA, solely for your personal, non-commercial use.
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the any portion of the Product or make the Product available to any unauthorized third party, (b) copy or use any portion of the Product for any purpose other than as permitted in Section 1, (c) use any portion of the Software on any device or computer other than a Device provide by Momentum IoT or a Provider, (d) remove, obscure or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product, or (e) modify, make derivative works of, disassemble, decompile or reverse engineer any part of the Product (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Momentum IoT and provide Momentum IoT an opportunity to create such changes as are needed to achieve interoperability). You shall not disclose to any third party or publicize the results of any performance or functional evaluation of any portion of the Product without Momentum IoT’s prior written approval.
3. Automatic Software Updates.
Momentum IoT may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product or to make additional services, features or functionality available to you (“Updates”). Updates may be automatically installed in the Product without prior notice and you hereby agree to the installation of such Updates. If you do not want to receive Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and you agree to promptly install any Updates that Momentum IoT provides.
As between the parties, except for the rights expressly granted to you hereunder, Momentum IoT retains exclusive ownership of the Product, all data that is generated, collected, and/or results from the use of the Product, and all intellectual property and proprietary rights recognized anywhere in the world therein. Momentum IoT and its licensors reserve all rights in and to the Product not expressly granted to you in this EULA and this EULA does not grant any rights or licenses by implication. The Software (and all copies thereof) is licensed to you, not sold by Momentum IoT. Any and all suggestions, comments and feedback provided by you to Momentum IoT relating to the Product (“Feedback”) shall belong to Momentum IoT. Momentum IoT may use, copy, modify, publish, and redistribute Feedback for any purpose and in any way without any compensation to you.
5. Consent to Use of Information and Data Security
You acknowledge and agree that Momentum IoT and its affiliates, partners and agents may read, collect, transfer, process and store certain information collected from the Product, including but not limited to information about (i) the Product and (ii) the software applications, contents and peripheral devices that interact with the Software (“Information”). Information includes, but is not limited to: [(1) unique identifiers relating to your Device and its components; (2) performance of the Product; (3) configurations of the Device, the Product and applications, contents and peripheral devices that interact with the Product; (4) use and frequency of use of the functions of the Product; and (5) location data]. Momentum IoT and its affiliates, partners and agents may use and disclose Information subject to applicable laws in order to improve its or their products and services or to provide other products or services to you. Such uses include, but are not limited to: (a) administering the functionalities of the Product; (b) improving, servicing, updating or upgrading the Product; (c) improving, developing and enhancing current or future products and services; (d) providing you with information about products and services offered by Momentum IoT and other parties; and (e) complying with applicable laws or regulations. In addition, Momentum IoT retains the right to use Information to protect itself and third parties from illegal, criminal or harmful conduct.
Certain services available through the Product may rely upon location information. You acknowledge that, for the purpose of providing such services, Momentum IoT or its partners may collect, archive, process and use such location data, and that such services are governed by the privacy policies of Momentum IoT or such partners. Further, you agree that Momentum IoT is the owner of all data and intellectual property rights relating thereto.
Information may be processed, stored or transferred to Momentum IoT, its affiliates or agents which are located in countries outside of your country of residence. Data protection and information privacy laws in certain countries may not offer the same level of protection as your country of residence and you may have fewer legal rights in relation to Information processed and stored in, or transferred to, such countries. Momentum IoT will make reasonable efforts to take appropriate technical and organizational steps to prevent unauthorized access to or disclosure of Information but does not warrant it will eliminate all risk of misuse of such Information.
6. Open Source.
Certain items of software included with the Product are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for Open Source Software. If required by a license for Open Source Software, Momentum IoT makes such Open Source Software, and its modifications to that Open Source Software, available by written request sent to email@example.com.]
7. Term and Termination.
This EULA is effective on the date you first use the Product and shall continue for as long as you use the Product, unless this EULA is terminated under this Section 7. This EULA will automatically terminate upon the termination of the integrator tenant agreement or subscription agreement between Momentum IoT and the Provider that provided the Product to you. Momentum IoT may terminate this EULA at any time if you fail to comply with any terms hereof. You may terminate this EULA effective immediately upon written notice to Momentum IoT. Upon expiration or any termination of this EULA, the license granted hereunder will terminate and you must immediately cease all use of the Product. The terms of Sections 4 through 17 (inclusive) of this EULA will remain in effect following any termination of this EULA.
8. Warranty Disclaimer.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOMENTUM IOT PROVIDES THE PRODUCT “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MOMENTUM IOT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT. MOMENTUM IOT MAKES NO WARRANTY THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. USE OF THE PRODUCT AND/OR INFORMATION GENERATED BY THE PRODUCT IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND MOMENTUM IOT DISCLAIMS) ANY AND ALL LOSS, LIABILITY AND DAMAGES ARISING FROM A USER’S USE OF THE PRODUCT OR ANY COMPUTER, MOBILE DEVICE OR OTHER PRODUCT CONNECTED TO OR USED WITH THE PRODUCT.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOMENTUM IOT BE LIABLE FOR (A) ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST OR CORRUPTED DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCT, EVEN IF MOMENTUM IOT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR RIGHTS, OR (C) DAMAGES ARISING FROM OR RELATED TO THE PRODUCT OR ITS USE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY, IN AN AMOUNT EXCEEDING ONE HUNDRED DOLLARS ($100).
As used herein, “Confidential Information” means Momentum IoT’s non-public or proprietary information, knowledge and data that relates to its actual or anticipated business, services, products and/or finances including, without limitation, methods, designs, ideas, techniques and processes, business strategies, customer lists, price lists, scientific and technical specifications and documentation and trade secrets, disclosed by, or obtained from, Momentum IoT, either directly or indirectly, in writing, orally or visually, including, any information a reasonable person would understand to be confidential under the circumstances. Confidential Information does not include information that: (a) was previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain prior to the date of disclosure; (c) is disclosed to you by a third party who is not subject to an obligation of confidentiality with respect to such information; or (d) is independently developed by you without access to the Confidential Information. Without limiting the foregoing, Momentum IoT’s Confidential Information includes the Product and any documentation related thereto.
You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and thereafter, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise make available Confidential Information to any unauthorized third party without the prior written consent of Momentum IoT. You shall not use any Confidential Information other than to the extent necessary to exercise the rights granted to you hereunder. You shall notify Momentum IoT in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and you shall cooperate with Momentum IoT in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you shall (a) immediately notify Momentum IoT prior to such disclosure to allow Momentum IoT an opportunity to contest the disclosure, (b) assert the privileged and confidential nature of the Confidential Information, and (c) cooperate fully with Momentum IoT in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
You acknowledge that the Product contains valuable trade secrets and proprietary information of Momentum IoT and that any unauthorized disclosure or use of Confidential Information will constitute a material breach of the Agreement and cause substantial harm to Momentum IoT for which damages would not be a fully adequate remedy. Therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, Momentum IoT shall have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.
11. For U.S. Government End Users.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product is provided to U.S. Government end users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
13. Governing Law; Venue.
This EULA is governed by the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Los Angeles County, California and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such claim or dispute, except that Momentum IoT may seek injunctive relief in any court having jurisdiction to protect its intellectual property rights or Confidential Information.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and void and without effect.
Any notice to you may be provided by email to the address that you registered with Momentum IoT or such other email address as you may provide to Momentum IoT at firstname.lastname@example.org.
If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
All waivers by Momentum IoT will be effective only if in writing. Any waiver or failure by Momentum IoT to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
The Product is deemed irrevocably accepted upon your use of the Product. Momentum IoT will have no responsibility to provide maintenance or support services with respect to the Product. You acknowledge and agree that you and Momentum IoT are independent contractors and that neither party is an agent of the other.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Except as otherwise provided in this section, no amendment to this EULA will be valid unless agreed to in writing signed by you and Momentum IoT.
This EULA constitutes the entire agreement between you and Momentum IoT with respect to the Product and supersedes any and all prior agreements between you and Momentum IoT relating to the Product.
18. Questions or Additional Information.
If you have questions regarding this EULA, please contact Momentum IoT at [email@example.com] or by calling our Customer Success Team at (323) 831-3475.