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End-User License Agreement END-USER LICENSE AGREEMENT
(“EULA”)
FOR THE ELEVATORAPP WEB APPLICATION
This End-User License Agreement (“EULA”) is between Jaka LLC (“Jaka”) and each user that is registered with and establishes a User Account to use the Licensed Application (defined below) and that accepts this EULA (each an “Authorized User”). The Licensed Application may include, without limitation, computer software and/or corresponding services and may also include associated media, printed materials, and “online” or electronic documentation. JAKA provides to Authorized Users the right to access and use the Licensed Application subject to the terms of this EULA. Any use of the Licensed Application in a manner not contemplated by the EULA is prohibited.
BY ACCESSING, DOWNLOADING, INSTALLING, IMPLEMENTING, OR USING THE LICENSED APPLICATION, AUTHORIZED USER ACCEPTS THIS EULA AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, AS THE SAME MAY BE AMENDED BY JAKA IN ITS DISCRETION FROM TIME TO TIME. IF YOU, AS A USER, DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL, IMPLEMENT, OR USE THE LICENSED APPLICATION. IF YOU ARE AN EXISTING AUTHORIZED USER OF THE LICENSED APPLICATION AND WISH TO NO LONGER BE BOUND BY THIS EULA, THEN YOU MUST IMMEDIATELY CEASE USING THE LICENSED APPLICATION, DELETE ANY RELATED FILES OR DOCUMENTATION FROM YOUR SYSTEM, AND NOTIFY JAKA THAT YOU WISH TO NOT BE BOUND BY THIS EULA SUCH THAT EULA CAN CLOSE YOUR USER ACCOUNT AS SET FORTH BELOW AND PREVENT YOUR FURTHER ACCESS TO THE LICENSED APPLICATION.
RECITALS:
A. The Licensed Application is the ElevatorApp website application and any related services, which are currently provided at elevatorapp.com, Apple Store and Google Play Store, but which may, at Jaka’s discretion, be accessed through one or more additional domains or systems (“Alternate Domains”). In the event Jaka provides the ElevatorApp through an alternate domain, the terms of this EULA shall remain in force and the Authorized User’s use and access to the Licensed Application shall be subject to this EULA. The Licensed Application contains some or all of the following: server(s) and software to provide the ElevatorApp website application, data storage and data analytics. The Licensed Application receives data from Authorized Users concerning the operation, location, service records, maintenance, and/or performance (“Maintenance Data”) of elevators and other equipment serviced or monitored by Authorized Users (“Serviced Equipment”).
B. JAKA owns the Licensed Application.
C. JAKA provides to Authorized Users the right to access and use the Licensed Application pursuant to this EULA. The right to access and use the Licensed Application is subject to acceptance of this EULA by an Authorized User and the terms and conditions set forth herein.
D. The Licensed Application and related services are protected by applicable federal, state, local and foreign laws, rules, regulations and treaties, including, without limitation, United States and foreign copyright laws and international copyright treaties.
E. Authorized Users may include but not limited to property owners, property managers, and elevator service providers. Authorized User represents and warrants that he or she is 18 years old or older, or a legal entity, and recognizes that use of the License Application is limited to persons 18 years old or older and legal entities.
NOW, THEREFORE, in exchange for the mutual promises set forth in this EULA, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. General Terms
a. Recitals. The introductory paragraphs and Recitals provided above shall are incorporated into the terms and conditions this EULA.
b. Grant of License. Provided that an Authorized User accepts this EULA and complies with all terms and conditions of this EULA, JAKA hereby grants each Authorized User a limited, non-exclusive, non-transferable, non-assignable, revocable license for Authorized User’s personal use and/or purposes within Authorized User’s organization to access and use the Licensed Application.
c. True License. The parties acknowledge their mutual intention that the license granted under this EULA be construed to be a true license and not a sale of the Licensed Application or any component or element thereof, or any patent, copyright, trademark, trade secret or other proprietary rights therein or thereto.
d. Licensed Application Revisions. JAKA may revise the features and functions of the Licensed Application without notice at any time.
e. License Fee. The licenses granted hereunder are subject to the Authorized User paying the applicable license fee published on at elevatorapp.com. Payment of the license fee shall be effected through a third-party payment provider, which is currently Stripe.
2. Term and Termination
a. Term. This EULA shall become effective as of the acceptance of this EULA by Authorized User and shall remain in effect until terminated as permitted under this EULA.
b. Termination. Either party may terminate this EULA for any reason at any time. Authorized User may terminate this EULA by closing the corresponding User Account at elevatorapp.com, or if such ability is not available, by notifying JAKA in writing. JAKA may terminate by notifying Authorized User in writing including, without limitation, via text, email, or other electronic means, and closing Authorized Users account.
c. Effect of Termination or Expiration. In the event of the termination or expiration of this EULA, the licenses granted hereunder shall terminate and Authorized User shall immediately cease accessing and using the Licensed Application. Termination or expiration of this EULA shall be without prejudice to any other right or remedy to which JAKA may be entitled under this EULA or applicable law. Termination or expiration of this EULA shall not relieve Authorized User from its obligations arising hereunder before termination or expiration of this EULA or which survive termination or expiration of this EULA.
4. Permissions from Authorized User:
a. Authorized User consents to JAKA managing Authorized User’s personally identifiable information as set forth in JAKA’s privacy policy, currently posted at www.elevatorapp.com/privacypolicy (the “Privacy Policy”). The Privacy Policy applies only to JAKA website(s) and the Licensed Application and does not apply to any third party website or service linked to the System or recommended or referred to through the System by JAKA or other System users. JAKA reserves the right to amend the Privacy Policy at any time. Authorized User agrees to keep current on the Privacy Policy and any changes made thereto.
b. Authorized User grants JAKA permission to access, process and otherwise use Maintenance, Inspection, and Elevator Data provided by Authorized User in order to provide JAKA’s products and/or services to Authorized User, and to track and analyze Authorized User’s use of the Licensed Application and Serviced Equipment.
c. Authorized User grants JAKA permission to aggregate Maintenance , Inspection, and Elevator Data relating to Authorized User’s Serviced Equipment, after removing any personally identifiable information, with de-identified Maintenance, Inspection, and Elevator Data from other Authorized Users (“Aggregate Maintenance Data”) in order for JAKA provide products and services to its customers, including without limitation tracking and analyzing performance indicators of Serviced Equipment, including, for example, usage, maintenance, uptime, and/or fault trends of Serviced Equipment. Authorized User agrees that Authorized User has no rights of ownership or access to Aggregate Maintenance Data.
d. Authorized User consents to receive email and/or text messages from JAKA in connection with Authorized User’s use of the Licensed Application. Standard text messaging charges required by Authorized User’s mobile carrier will apply to text messages we send Authorized User.
5. Description of Other Rights, Obligations and Limitations
a. Restrictions on Use. Authorized User shall not:
(i) market, sell, distribute, sublicense, use, modify, translate, reproduce, create derivative works from, dispose of, rent, lease, or authorize or permit access or use of any portion of the Licensed Application except as expressly permitted in this EULA;
(ii) access or use, or permit the Licensed Application to be accessed or used, in a computer service bureau, time-sharing, or interactive cable television arrangement or in a network arrangement;
(iii) copy, reverse engineer, decompile, or disassemble the Licensed Application, except and only to the extent that such activity is expressly permitted by applicable law;
(iv) export or use the Licensed Application in violation of U.S. law, including Department of Commerce export administration regulations;
(v) access and use the Licensed Application in any manner that is inconsistent with the terms of this EULA; or
(vi) upload or store personally identifiable information of natural persons other than Authorized User’s access credentials and business contact information.
b. Additional Obligations.
(i) Authorized User shall comply in full with all federal, state, local and foreign laws, rules and regulations in connection with its access to, and use of, the Licensed Application or the use thereof by any employee or agent of Authorized User.
(ii) The Licensed Application may be accessed and used only in a form and manner approved by JAKA in its sole discretion, and only in accordance with the terms and conditions of this EULA.
(iii) Authorized User shall take reasonable steps to prevent unauthorized access to the Licensed Application, including by protecting Authorized User’s passwords and other log-in information. Authorized User shall notify JAKA immediately if Authorized User knows of or suspects unauthorized use of the Licensed Application or breach of its security.
(iv) Authorized User understands and agrees that JAKA may delete non-current Maintenance Data periodically and without prior notice to Authorized User, and that Authorized User is fully responsible for backing up Maintenance Data and creating any archival copies it needs.
6. Feedback. JAKA has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Authorized User may provide to JAKA, and nothing in this EULA or in the parties’ dealings arising out of or related to this EULA will restrict JAKA’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Authorized User. Authorized User hereby grants JAKA a royalty free, perpetual, irrevocable right and license to use and/or commercialize Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of JAKA’s products or services.)
7. ACCESS TO AND USE OF THE LICENSED APPLICATION IS PROVIDED “AS IS”, “WITH ALL FAULTS”. JAKA DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OR USE OF THE LICENSED APPLICATION AND/OR RELATED SERVICES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, IF AN AUTHORIZED USER IS DISSATISFIED WITH THE LICENSED APPLICATION, RELATED SERVICES OR ANY PORTION THEREOF, SUCH AUTHORIZED USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE LICENSED APPLICATION. THE PARTIES AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE LICENSED APPLICATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE LICENSED APPLICATION. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE ABOVE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO AN AUTHORIZED USER WITHIN SUCH JURISDICTION.
8. LIABILITY CAP AND LIMITATION OF LIABILITY
a. LIABILITY CAP. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, IN NO EVENT SHALL JAKA’S TOTAL LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS EULA (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED: (I) THE GREATER OF THE TOTAL FEES ACTUALLY PAID TO JAKA BY AUTHORIZED USER UNDER THIS EULA; OR (II) U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
b. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, NEITHER JAKA NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE, UNDER ANY CIRCUMSTANCES, LIABLE TO AUTHORIZED USER OR ANY OTHER PERSON, FIRM OR ENTITY (WHETHER IN AN ACTION ARISING FROM CONTRACT, TORT OR OTHER LEGAL THEORY) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES RESULTING FROM THE ACCESS OR USE OF THE LICENSED APPLICATION OR RELATED SERVICES, OR OTHERWISE, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES ARISING FROM (I) INFORMATION OR DATA OBTAINED FROM OR THROUGH LICENSED APPLICATION, (II) RELIANCE BY ANY PERSON ON INFORMATION OR DATA OBTAINED FROM OR THROUGH LICENSED APPLICATION, (III) VIRUS TRANSMISSION OR DELETION OR LOSS OF FILES OR E-MAIL, (IV) LOSS OF DATA OR INFORMATION OF ANY KIND, (V) LOSS OF PROFIT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF JAKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (VI) LIABILITY FOR PERSONAL INJURY, (VII) LIABILITY TO THIRD PARTIES, (VIII) LIABILITIES ARISING FROM DISPUTES BETWEEN AUTHORIZED USERS CONCERNING THE SOLICTATION OF MAINTENANCE SERVICES, CONTRACTING OF MAINTENANCE SERVICES, THE PERFORMANCE OR NON-PERFORMANCE OF CONTRACTED MAINTENANCE SERVICES, OR PAYMENT OR NON-PAYMENT FOR CONTRACTED MAINTENANCE SERVICES, AND DISPUTES BETWEEN AUTHORIZED USER AND THE PAYMENT PROCESSOR FOR THE LICENSED APPLICATION.
9. Exclusive Remedy. In the event of a breach of this EULA by JAKA, JAKA’s and its service providers’ entire liability and an Authorized User’s sole and exclusive remedy shall be, at JAKA’s option: (a) return of the fees paid (if any) by an Authorized User for access to and use of the Licensed Application under this EULA, or (b) repair or replacement of, the Licensed Application and/or Application Database; provided, however, that an Authorized User shall not be entitled to the foregoing remedy if any error or problem with Licensed Application arises from or results from violation of this EULA, accident, abuse, misapplication, abnormal or unauthorized access or use, or the introduction of a virus or other malicious code, by or through the fault of Authorized User or any employee or agent of Authorized User.
10. Intellectual Property Ownership, Copyright Protection. The Licensed Application, and any authorized copies that an Authorized User makes thereof, are the intellectual property of and are owned by JAKA and its suppliers. The structure, organization and code of the Licensed Application are the exclusive property, valuable trade secrets and confidential information of JAKA and/or its suppliers and title to the Licensed Application shall at all times remain with JAKA and/or its suppliers. Except as expressly stated herein, this EULA does not grant Authorized User any intellectual property rights in the Licensed Application, or any component or element thereof, and all rights not expressly granted to Authorized User under this EULA are reserved to and retained by JAKA and/or its suppliers. Notwithstanding anything contained in this EULA to the contrary, JAKA reserves the right to release the Licensed Application under different license terms or to stop distributing or making available the Licensed Application at any time.
11. Indemnity. Authorized User shall indemnify, defend and hold harmless JAKA and its affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, arising in connection with or related to: (i) the material breach of this EULA by Authorized User or any employee or agent of Authorized User; (ii) the acts and omissions of Authorized User and its employees and agents in connection with Authorized User’s use of the Licensed Application; (iii) the violation, infringement or misappropriation by Authorized User or any employee or agent of Authorized User, of the intellectual property rights of JAKA or any of its suppliers; (vi) damages arising from the performance or nonperformance of services by a Authorized User; and (vii) non-payment of moneys asserted to be owed from one Authorized User to another. The JAKA may, at its own cost and expense, participate, through its attorneys or otherwise, in the investigation, trial and defense of such claim and any appeal. In such case, the Authorized User will reasonably cooperate with JAKA’s attorneys.
12. Applicable Law. This EULA is governed, construed and enforced in accordance with the laws of the State of Illinois, without giving effect to any principles of conflicts of laws. Subject to Section 15, Jurisdiction and venue for all actions arising under this EULA shall be in the federal and state courts located in Illinois. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this EULA.
13. Entire Agreement. This EULA (including any addendum or amendment to this EULA which is included with the Licensed Application) is the entire agreement between an Authorized User and JAKA relating to the subject matter of this EULA and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter of this EULA. To the extent the terms of any JAKA policies or programs for Support Services conflict with the terms of this EULA, the terms of this EULA shall control.
14. Notices and Questions. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth in this EULA (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt. Should an Authorized User have any questions concerning this EULA, or if Authorized User desires to contact JAKA for any reason, please contact the JAKA office serving Authorized User’s location, or write JAKA at: 110 Athens Suite A, Tarpon Springs, FL 34689.
15. Dispute Resolution. AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT BY ENTERING THIS EULA, THAT IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
16. Force Majeure. JAKA shall not be responsible for delays or failure of performance resulting from acts beyond the reasonable control of JAKA. Such acts shall include, but not be limited to, acts of God, pandemics, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers or service providers to perform, governmental regulations, power failures, Internet or telecommunications failures, earthquakes, or other disasters.
17. Compliance with License and Laws. Authorized User shall comply with all federal, state, local and foreign laws, regulations, rules and ordinances pertaining to the operations and conduct of its business and the license granted to Authorized User under this EULA. In the event that any part of this EULA is determined to violate any applicable federal, state, local or foreign laws, rules or regulations, then the remaining provisions of this license shall remain in full force and effect and shall be enforced to fullest extent permitted by law.
18. Payments. JAKA does not accept or process payment information for use of the Licensed Application. Payments for use of the Licensed Application are handled by a Payment Processor, Stripe, which has its own terms and conditions, which govern its payment application. Authorized User acknowledges and agrees that to make payment through Stripe, it will have to be governed by Stripe’s terms and conditions and that Stripe may manage Authorized User’s personal information. Stripe’s privacy policy may be found at: https://stripe.com/privacy. JAKA is not responsible for information provided to Stripe by Authorized User.
19. Headings. The titles and headings of the various sections and paragraphs in this EULA are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this EULA.
20. Forms. No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this EULA.
21. Waiver/Assignment. A waiver of any provision of this EULA shall only be effective if in a writing signed by the party against which the waiver is claimed. This EULA may not be assigned by Authorized User without the prior written consent of JAKA. This EULA may be assigned by JAKA, by operation of law or otherwise, without the consent or approval of Authorized User or any other person, firm or entity.
22. Survival. Sections 1b, 2b, 2c, 3, 4c, and 5-22 shall survive the termination or expiration of the EULA for any reason.
IN WITNESS WHEREOF, the parties hereto have caused this EULA to be executed by themselves or their authorized agents as of the date of acceptance by the Authorized User.
BY USING THE ELEVATORAPP, YOU INDICATE YOUR ACCEPTANCE OF THIS EULA.
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