End-User Licensing Agreement
The software that you (the “Client”) seek to install in your vehicle is licensed only on the condition that the Client agree to the terms and conditions set forth below (the “Agreement”).
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY.
The software that the Client is about to access is computer software for vehicles to improve performance and capability (the “Software”) developed by M Engineering, LLC, a Montana limited liability company (the “Vendor”). This End-User Licensing Agreement sets forth the terms under which the Client, as an individual or entity authorized by Vendor (or, for entities, an employee or agent the Client authorize to use the Software), may use the Software.
Access to and use of the Software is by permission of Vendor only, and only for potential clients who accept this Agreement. Vendor may grant or withhold approval in its sole discretion.
Based on the foregoing and for other good and valuable consideration, the Client and Vendor agree as follows:
- Nature of the Agreement. This Agreement is a legal contract made between the Client and Vendor. This Agreement contains the terms and conditions with which the Client must comply in order to access and use the Software.
- License Grant. Vendor hereby grants to the Client one non-exclusive, non-assignable, non-transferable, non-sublicensable, non-refundable and non-exchangeable license, for use by the Client (the purchaser, or the Client’s employees only) for the term of this Agreement, to access and use the Software and any user’s guides, specifications, and other related documentation available, whether hard copy or online (the “Documentation”), subject to the terms and conditions of this Agreement. The license allows the Client to use only one copy of the Software on one vehicle.
- Ownership of Software. Vendor retains all rights to the Software and the Documentation not specifically granted in this Agreement. Vendor owns the Software and the Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to the Client any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software and the Documentation are protected by United States laws and international treaty provisions. The Client may not use, copy, or modify the Software, in whole or in part, except as expressly provided for in this Agreement.
- Restrictions. To the maximum extent permitted by law, the Client shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, network, or otherwise transfer the Software access to any third party; or (c) make any copy of or otherwise reproduce or display the Software. The Client agrees to take all reasonable steps to safeguard the Client’s Software and all associated coding so as to ensure that no unauthorized person will have access to it, and that no persons authorized to have access will make any unauthorized use. The Client shall promptly report to Vendor any unauthorized use of the Software of which the Client becomes aware and shall take such further steps as may reasonably be requested by Vendor to prevent unauthorized use thereof.
- Client Obligations. The Client shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software, as specified by Vendor; (b) safely operating the Client’s vehicle so as to not use the Software for harm to the Client or others; and (c) maintaining the Client’s vehicle as required to ensure the highest performance of the Software and prevent unforeseen consequences that may result from poor maintenance.
- Term and Termination. The license granted in this Agreement is effective in perpetuity, as long as the Client owns the License and adhere to the terms and conditions of this Agreement. The term of this Agreement and the License grant herein shall commence on the date the Client agrees to this Agreement and the Software is installed. In the event the Client installs competing software or other similar performance enhancing software that does is not provided by or installed by Vendor, this license Agreement terminates. This license shall also terminate automatically on the Client’s failure to comply with any of the other terms of this Agreement. On termination of this Agreement, the Client agrees to promptly discontinue use of the Software, and delete all electronic copies of any documentation that the Client has downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored so as to get into the hands of a third party. Notwithstanding termination, the provisions of Sections 3, 6, 7, 8, 9, and 10 of this Agreement shall survive and continue to apply.
- The Client agree that they shall not disclose to any third party the Software or any portion thereof, any technical, product, code, or business information, or any information that Vendor identifies as confidential (collectively, “Confidential Information”) related to the Software without the prior written consent of Vendor. The Client shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include information that the Client can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by the Client; (b) in the Client’s possession before disclosure by Vendor; or (c) disclosed to the Client by a third party not in violation of any obligations of confidentiality to Vendor or to any third party.
- Limitation of Liability. The Client is not entitled to receive damages from Vendor for any cause relating to this Agreement, to their use of the Software, to any services provided by Vendor under this Agreement, or to any services provided by any third party in connection with the Client’s use of the Software. In addition, in no event shall the Client be entitled to obtain any injunctive relief or enjoin, restrain, or otherwise interfere with Vendor or with the distribution, operation, development, or performance of the Software or any related products. In no event shall Vendor be liable to the Client for any damages whatsoever under any legal theory, tort, contract, or otherwise arising out of the their use of, or inability to use, the Software. In no event shall Vendor be liable for any special, indirect, incidental, or consequential damages, or damages for loss of data, lost profits, or loss of life, regardless of the legal theory under which such damages are sought, and even if advised in advance of the possibility of such damages. As some states do not allow the limitation or exclusion of liability for incidental or consequential damages, the above limitation or exclusion may not apply to you.
- Limited Warranty and Disclaimer. Vendor warrants that, as of the date on which the Software is purchased and for sixty (60) days thereafter (“Warranty Period”), the Software will provide the general features and functions described in the Documentation in effect on the date of purchase. Vendor's entire liability and Client’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Vendor's option, (i) to attempt to correct or work around errors, if any, or (ii) to refund the license fees, if any, paid by you and terminate this Agreement or the license specific to such Software. Such refund is subject to the discontinuance of the use of the Software, destroying all printed copies and deleting all electronic copies of any documentation that Client has downloaded, printed, or created relating to the Software, and ensuring that no copies of any of the Software screens, data, or other content remain archived or otherwise stored, during the Warranty Period, and providing declaration of same to Vendor. The Limited Warranty set forth in this section gives the Client specific legal rights. The Client may have additional legal rights under law which vary from jurisdiction to jurisdiction. Vendor does not seek to limit the Client’s warranty rights to any extent not permitted by law. To the maximum extent permitted by law, Vendor expressly disclaims any and all warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, as well as any warranties alleged to have arisen from custom, usage, or the course of dealing between the Parties. Vendor does not warrant that the functions contained in the Software will meet the Client’s requirements or that the operation of the Software will be uninterrupted or error-free. In no event shall Vendor or its suppliers be liable for any damages whatsoever (including, without limitation, void of warranty, damage to drivetrain, damages to any other parts of the vehicle, damages to Client, associates of Client, or others on the road, or other pecuniary loss) arising out of the use of or inability to use this Software, even if Vendor has been advised of the possibility of such damages. Because some states do not allow the exclusion or limitation of liability for consequential damages, the above limitation may not apply to the Client.
- Governing Law. This Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws provisions.
- Force Majeure. If the performance of Vendor under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of Vendor, then Vendor shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
- Severability. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
- No Assignment. The Client may not assign this Agreement or any of the rights granted by Vendor hereunder, in whole or in part, without the prior written consent of Vendor, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
- Attorneys’ Fees. In the event of legal action brought by either party, the prevailing party shall be entitled to reimbursement of actual legal fees and related expenses.
- Modification. This Agreement may be modified or amended at the sole discretion of Vendor.
- Export Control. The Client agrees to obey and comply with any and all applicable United States laws, rules, and regulations governing the export of software.
- Acknowledgement And Exclusivity. The Client acknowledges that they have read this Agreement, understand it, and agree to be bound by its terms and conditions. They further agree that it is the complete and exclusive statement of the Agreement between the Client and Vendor, and that it supersedes any proposal, prior agreement, or understanding, oral or written, and any other communication between the Client and Vendor relating to the subject matter of this Agreement. This Agreement may not be changed, altered, or modified except in writing and signed by the parties.