Downloading, accessing, copying the App (hereinafter defined) or using the App constitutes your unconditional acceptance of and consent to all the terms and conditions of this End User License Agreement (“EULA” or “Terms”). If you do not fully accept these terms and conditions of this EULA, do not use or otherwise access this App.
Terms and Conditions
This EULA constitutes an agreement between you and Sumitomo Electric Lightwave Corp. whose principal office is 201 South Rogers Lane, Suite 100, Raleigh, NC, USA, 27610 (“SEL”). This EULA governs your use of the mobile application for Ribbon Fiber Inspector (the “App”) provided by SEL.
1. PERMITTED USE
SEL hereby grants you a personal, non-exclusive, non-transferable, limited, revocable license to use the App solely on your smartphone device in accordance with the terms and conditions herein. SEL may revoke your use of the App at any time and nothing herein constitutes a representation that the App will be available to you for your access or use.
2. INTELLECTUAL PROPERTY RIGHTS
All right and title (including, without limitation, copyright, trade dress, and any other intellectual property rights) in and to the App are exclusively owned by SEL.
3. LICENSE RESTRICTIONS
You agree that you will access and use the App solely in a lawful manner. You shall not (and shall not permit anyone else to):
(a) use the App in any way not expressly permitted in this EULA.
(b) rent, lease, sublicense, sell, assign, loan, distribute or otherwise transfer the App to any third party.
(c) modify, adapt, or create derivative works based on, the App or copy any element of the App (other than authorized copies of the App).
(d) use the App to develop a similar or competing product or service.
(e) destroy or remove any copyright notices or other proprietary markings on the App.
(f) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of, the App (unless such restriction is prohibited by law and you give prior notice to SEL).
(g) interfere with the App’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the App.
(h) transmit or upload any viruses or other harmful materials using the App.
(i) submit, upload, or post to the App any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity or otherwise use the App to transfer, communicate or store illegal material.
4. OPEN SOURCE SOFTWARE
Certain portions of the App may utilize or include third party software that is subject to open source license terms (“Open Source Software”). You acknowledge, accept and agree that your right to use such Open Source Software as part of or in connection with any App is subject to and governed by the terms and conditions of the open source license applicable to such Open Source Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this EULA and the terms of such open source licenses with regard to your use of the relevant Open Source Software, the terms of the open source license shall control.
5. INTERNET CONNECTIVITY
You agree that access to certain features or functions incorporated in the App may require an internet connection, for which you are solely responsible. Further, you acknowledge that SEL is not responsible for payment of any third party fees associated with the internet connection, including but not limited to internet service provider charges and airtime charges. You acknowledge that part or all of the features or functions of the App are not available depending on the capabilities, bandwidth or technical limitations of the internet connection and service, geographic location, or any other circumstances where the App is used.
6. UPDATES AND MODIFICATIONS
You acknowledge and agree that SEL may update or otherwise modify the App at any time at SEL’s sole discretion with or without notice to you, and that such updates or modifications may delete or change the nature of features or any other aspects of the App. Any updates and modifications shall be deemed to be, and shall constitute part of, the App for purposes of this EULA.
7. SUSPENSION OF ACCESS TO THE APP
Without prejudice to its other rights, SEL may suspend your access to the App:
(a) if you breach section 3 (License Restrictions);
(b) if your actions risk harm to third parties or the security, availability or integrity of the App;
(c) if information related to you and registered in the App is not accurate, or if you fail to update such information;
(d) if there are technical problems with the App;(e) if maintenance is required;
(f) if SEL believes suspension is necessary to comply with any law or an order of any government or regulatory body.
When reasonably practicable and lawfully permitted, SEL will use reasonable and appropriate efforts to provide you with prior notice of any suspension of your access to the App. Once you resolve the issue requiring suspension to SEL’s satisfaction, SEL may restore your access to the App in accordance with this EULA.
8. NO WARRANTY
(a) SEL MAKES NO WARRANTY (I) THAT THE APP DOES NOT INFRINGE UPON THE INTELLECTUAL PROPERTY OR ANY OTHER RIGHTS OF ANY THIRD PARTY; (II) THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR FREE OF ERRORS OR FREE OF VIRUSES; (III) THAT DEFECTS IN THE APP WILL BE CORRECTED; (IV) THAT THE FUNCTIONS CONTAINED IN THE APP WILL MEET YOUR REQUIREMENTS; (V) THAT THE APP WILL MAINTAIN THE YOUR DATA WITHOUT LOSS.
(b) SEL PROVIDES THE APP “AS IS”, “AS AVAILABLE,” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AS TO PERFORMANCE, QUALITY, SECURENESS OR FREEDOM FROM CODING OR DATA TRANSFER ERRORS.
(c) SEL IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE SEL’S CONTROL.
(d) THE ABOVE SHALL NOT LIMIT IN ANY WAY WARRANTIES FROM WHICH YOU MAY BENEFIT UNDER APPLICABLE MANDATORY STATUTES.
9. LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL SEL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERUPTION, LOSS OF DATA, ARISING OUT OF YOUR USE OR INABILITY TO USE THE APP, EVEN IF SEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) SEL’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
(c) SEL SHALL NOT BE LIABLE FOR AND DOES NOT ACCEPT ANY LIABILITY FOR ANY DAMAGES TO YOUR HARDWARE OF ANY KIND ARISING FROM THE DOWNLOAD, INSTALLATION, USE OF, OR INABILITY TO USE THE APP.
(d) SEL SHALL NOT BE LIABLE FOR AND DOES NOT ACCEPT ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE THEFT OF DATA TRANSMITTED IN THE COURSE OF USING THE APP.
(e) SEL SHALL NOT BE LIABLE FOR AND DOES NOT ACCEPT ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE INCOMPATIBILITY OF THE APP WITH HARDWARE, OPERATING SYSTEMS, THIRD-PARTY SOFTWARE, PERIPHERAL DEVICES, OR NETWORKS OPERATED BY YOU.
10. HIGH RISK ACTIVITIES
The App is not designed or intended for use in environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the App could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activity”). SEL specifically disclaims any express or implied warranty, duty or condition of fitness for High Risk Activity.
11. COLLECTION AND USE OF DATA BY SEL
You acknowledge (i) that SEL may collect any data generated, communicated or processed through the use of the App, and that (ii) that SEL may process or use such data for the following purposes:
(a) Providing the App to SEL’s customers and end users;
(b) Developing and improving the App;
(c) Administering and managing SEL’s contractual relationship with SEL’s customers;
(d) Developing and improving SEL’s products and services other than the App;
(e) Communicating with you about the products and services offered by SEL, including, without limitation, responding to your enquiries, requests and complaints;
(f) Analysis of user’s activity for marketing purposes;
(g) Sending direct marketing communication to you;
(h) Complying with applicable laws, regulations and other requirements (e.g. providing assistance to law enforcement agencies, regulatory authorities and other governmental agencies);
(i) Carrying out any other purpose described to you at the time the information was collected;
You acknowledge that SEL may delete data stored in the App for more than six (6) years and one (1) month after such data is stored in the App.
12. PERSONAL DATA
SEL may collect and process personal data generated, communicated or processed through your use of the App in accordance with Ribbon Fiber inspector Privacy Notice.
SEL reserves the right to amend any of the terms and condition of this EULA and to notify you of the content. If you do not wish to be bound by such amendment, you must cease to use the App before the effective date of such amendment. Your continued use of the App after the effective date of such amendment shall be deemed to be your consent to be bound by such amendment.
(a) SEL may terminate this EULA and your license provided under these Terms or your access to the App at any time, for any or for no reason.
(b) Your license under these Terms is automatically terminated when your account for the App is deleted.
(c) If a SEL customer creates your App account, this EULA is automatically terminated when you are no longer an employee or otherwise affiliated with the customer.
(d) SEL may terminate this EULA without any notice, if information related to you and registered in the App is not accurate, or if you fail to update such information.
(e) When this EULA is terminated, the license granted in the section 1 of this EULA will immediately terminate and you must: (i) cease to use the App and any services available through the App, and (ii) irretrievably uninstall the App.
(f) The provisions in the sections 2, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19 and 20 of this EULA shall survive any termination.
15. TRANSFER OF APP INSTALLED DEVICE
If you wish to transfer, lease or otherwise dispose of your devices on which you installed the App, you must uninstall the App from the devices before such disposition.
16. FORCE MAJEURE
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; earthquake; electrical, internet, or telecommunication outage that is not caused by the obligated party; actions of government, acts of terrorism; or other events outside the reasonable control of the obligated party.
You may not assign this EULA without the prior written consent of SEL. Any unapproved assignment is void. SEL may assign this EULA to any of its affiliates and/or to any third party, without requiring the consent of you. In such a case, SEL will provide you with a prior notice. This EULA will bind and inure to the benefit of each Party’s successors and assigns as approved and according to this section 17. In case this EULA is assigned in accordance with this section 17, the assignor shall be released from its obligations under this EULA.
18. ENTIRE AGREEMENT, SEVERABILITY
This EULA, as amended and modified pursuant herein, if applicable, constitutes the entire agreement between you and SEL and supersedes any prior oral or written communications and representations with respect to the App and any other subject matter covered by these Terms. In the event that any provision of this EULA is held to be invalid or otherwise unenforceable, such provision(s) will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this EULA will continue in full force and effect.
19. GOVERNING LAW
This EULA shall be governed by the following substantive laws, excluding rules relating to conflict of laws, of the State of New York, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this EULA.
20. DISPUTE RESOLUTION
The following courts will each have exclusive jurisdiction over all disputes arising out of or relating to this Agreement or its subject-matter: the United States District Court for the Southern District of New York and state courts located in the state of New York, U.S.A. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect to any legal action arising out of or relating to this EULA, the App, or any transactions contemplated hereby.