This End User License Agreement (this “Agreement”) is by and between the end user (“You” or “Your”) and Modustri, LLC (“Modustri”) for use of the Modustri iPad App and related software and services (the “Modustri App”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE MODUSTRI APP OR DOWNLOADING ANY UPDATES. BY (I) USING THE MODUSTRI APP; (II) DOWNLOADING ANY UPDATE; OR (III) CLICKING ON “OK,” “ACCEPT,” “AGREE”, “SUBMIT”, OR ANY BUTTON INDICATING ACCEPTANCE OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. YOUR CONTINUED USE OF THE MODUSTRI APP FOLLOWING THE POSTING OF ANY CHANGES TO THIS AGREEMENT CONFIRMS YOUR ACCEPTANCE OF THOSE CHANGES. THIS AGREEMENT CONSTITUTES A BINDING, LEGAL AGREEMENT BETWEEN YOU AND MODUSTRI AND IS INTENDED TO HAVE THE SAME FORCE AND EFFECT AS IF YOU HAD SIGNED IT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE MODUSTRI APP OR DOWNLOAD ANY UPDATES.
“Authorized Users” means users designated by whom you authorize to use the HDE Suite.
“Equipment” means you or your Authorized User’s machines measured with the WMD.
“HDE Suite” means, collectively, the Modustri App, the Modustri Web Portal Software, and the WMD.
“Modustri Web Portal Software” means the Modustri’s online web portal and platform for storing, tracking and analyzing Your Data including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such Modustri Web Portal Software that may hereafter be supplied by Modustri to You. Your use of the Modustri Web Portal Software is governed by separate terms and conditions of use viewable by clicking [here], the terms of which are incorporated herein by reference. “WMD” means Modustri’s ultrasonic wear measurement device. The WMD connects with your iPad via Bluetooth technology and takes live streaming measurements of the Equipment’s undercarriage.
“Your Data” includes all user information, data, data analyses and results, and other information and data input by You or on Your behalf into the Modustri App, transmitted by You or on Your behalf via the Modustri App, and all information and data that is generated, produced and reported through use of the Modustri App by You or on Your behalf. Your Data includes, but is not limited to, (i) your Equipment’s serial number, location, and operational data and (ii) data related to the wear on your Equipment.
The Modustri App is licensed, not sold, to You for use only under the terms of this Agreement, unless a product or service is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. Modustri reserves all rights not expressly granted to You.
3.1 The license granted to You and your Authorized Users for the Modustri App is limited to a revocable, non-exclusive, non-transferable, non-sublicensable license to use the Modustri App on any iPad You own or control. You may not (i) rent, lease, lend, sell, redistribute or sublicense the Modustri App; (ii) copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Modustri App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Modustri App); (iii) merge the Modustri App with any third party software or services; (iv) remove, obscure, or alter any copyright, trademark, or other proprietary notices embedded in or affixed to the Modustri App; (v) damage, disable, overburden, interfere with, disrupt or impair the Modustri App; (vi) interfere with any other party’s access, use or enjoyment of the Modustri App in any manner; (vii) violate any applicable local, state, federal, or international law or reregulation; or (viii) use the Modustri App for any purpose that is unlawful, fraudulent, or otherwise prohibit by this Agreement. If You breach any of these restrictions, You may be subject to prosecution and damages, including any costs incurred by Modustri or by any other party (including attorneys’ fees) as result of such breach. The terms of the license will govern any upgrades provided by Modustri that replace and/or supplement the original product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
4.1 In order for the Modustri App to function properly, the Equipment must be equipped with the WMD. You are responsible for the acquisition, configuration, monitoring, maintenance, calibration, and management of the WMD.
4.2 Modustri makes no representations regarding the accuracy or quality of data obtained by the WMD and transmitted to the Modustri App. You understand and acknowledge that the Modustri App and the WMD are intended to supplement your traditional undercarriage field inspections, not replace them. You further understand that you assume all risk should you rely solely upon the data and data analyses generated by the Modustri App and the WMD.
5.1 We may share some or all of Your Data with our dealer(s), our affiliates and their dealers, the manufacturer of your Equipment, and our business partners worldwide in order to (i) better our products and services; (ii) perform market research; (iii) comply with legal requirements; or (iv) offer you new products or services. BY ACTIVATING AND USING THE MODUSTRI APP, YOU CONSENT TO THE TRANSMISSION, USE AND TRANSFER OF YOUR DATA AS DESCRIBED ABOVE.
5.2 To the extent you have any ownership in Your Data, You hereby grant to Modustri, its dealers, and its affiliates and their dealers, a non-exclusive, perpetual, worldwide, paid-up, irrevocable, sub-licensable license to use Your Data for any internal business purpose, and for the analysis and improvement of the HDE Suite. Modustri, its dealers, and its affiliates and their dealers may disclose to third parties aggregate data based upon Your Data, so long as you are not identifiable from the disclosed aggregate data (the “Aggregate Data”). You acknowledge that you have no ownership in the Aggregate Data. For the avoidance of all doubt and to the extent any ownership in the Aggregate Data might exist, you here assign all of your right, title, and interest, if any, in and to the Aggregate Data to Modustri, without any fees and without rights to future royalties.
5.3 Modustri shall back-up Your Data on a daily basis. Such back-ups shall be stored in a secure environment (i.e., protected from flood, fire and the like). Standard security for Your Data includes firewall protection commensurate with generally accepted industry standards, SSL (Secure Socket Layer) encoding of transactions, and password-based user authentication. Upon request, Modustri will review its security procedures with You to ensure that the level of security being implemented meets Your requirements. Additional charges may be required for Your requested upgrades.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO WARRANTY IS MADE BY MODUSTRI WITH RESPECT TO THE MODUSTRI APP. YOU ACKNOWLEDGE AND AGREE THAT USE OF THE MODUSTRI APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MODUSTRI APP IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MODUSTRI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE MODUSTRI APP NOT EXPRESSLY STATED IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, OF NO ENCUMBRANCES/LIENS, WORKMANLIKE EFFORT, OF ACCURACY, OF QUIET ENJOYMENT, AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS. MODUSTRI FURTHER DISCLAIMS ANY WARRANTIES ARISING THOUGHT COURSE OF DEALING OR USAGE OF TRADE. MODUSTRI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE MODUSTRI APP, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE MODUSTRI APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE MODUSTRI APP WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT ALL DEFECTS IN THE MODUSTRI APP WILL BE CORRECTED. MODUSTRI MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SECURITY, RELIABILITY, TIMELINESS OR PERFORMANCE. YOU USE THE MODUSTRI APP ENTIRELY AT YOUR OWN DISCRETION AND RISK, AND YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM SUCH USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
YOU FURTHER AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE PROPER MAINTENANCE, OPERATION AND SUPPORT OF THE EQUIPMENT. NOTWITHSTANDING YOUR USE OF THE MODUSTRI APP AND REGARDLESS OF ANY INFORMATION PROVIDED THROUGH THE SAME (WHETHER ACCURATE OR INACCURATE) REGARDING THE OPERATION, MAINTENANCE OR PERFORMANCE STATUS OF THE EQUIPMENT, YOU ASSUME ALL RISK RELATED TO THE PROPER OPERATION, SUPPORT AND MAINTENANCE OF THE EQUIPMENT. ACCORDINGLY, YOU ARE RESPONSIBLE FOR ANY RISK OF LOSS FOR ANY EQUIPMENT REQUIRED TO COMMUNICATE WITH OR THROUGH THE MODUSTRI APP FROM ANY CAUSE, INCLUDING, WITHOUT LIMITATION, VEHICLE AND EQUIPMENT FAILURE, THEFT, FIRE, COLLISION, TAMPERING, OR VANDALISM.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MODUSTRI BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, VIRUS INFECTIONS, SYSTEM OUTAGES OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE MODUSTRI APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF MODUSTRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES TO THIRD PARTIES). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL MODUSTRI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY OR OTHERWISE) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The provisions of Sections 6 and 7 above represent a reasonable allocation of the risks under this Agreement. Modustri’s willingness to grant, and Your willingness to accept, the licenses herein granted reflects this allocation of risk and the limitations of liability specified herein.
You will indemnify, defend, and hold harmless Modustri, its directors, officers, employees and agents from and against any and all suits, claims, demands, losses, damages, costs and expenses of any nature whatsoever, including without limitation, litigation expenses, attorney’s fees and liabilities incurred in connection therewith, for any claim arising out of this Agreement or Your use of the Modustri App.
The Modustri App is a commercially valuable product and service of Modustri, the design and development of which reflect the efforts of skilled development experts and the investment of considerable time and money. Modustri claims and reserves all Intellectual Property Rights in and to the Modustri App. As used herein, “Intellectual Property Rights” shall mean all worldwide rights, title and interest (including, all patents, patent applications, business processes, copyright, data right, trademark, trade name, service mark, service name, trade secret, know-how or other similar right arising or enforceable under U.S. law, foreign law, or international treaty regime) in any information, system or software, including, without limitation, the Modustri App, documentation, databases, text, graphics, photographs, print, pictures, software, source and object codes, microcode, or any other form of technology or embodiment thereof, in any medium, whether currently known or developed in the future. You will have no right, license, or interest in any of the foregoing, expressly or impliedly, except for the license granted in this Agreement. Modustri will own all right, title, and interest in and to any replacements, improvements, updates, enhancements, derivative works and other modifications (including, without limitation, the incorporation of any ideas, methods or processes provided by or through you) to Intellectual Property Rights made by any person, even if paid for by you.
The Modustri App may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Modustri App, You acknowledge and agree that the Modustri is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Modustri does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You.
This Agreement is effective as of the date that You properly installed the App until terminated by you or Modustri at any time. Your rights under this Agreement will terminate automatically without notice from Modustri if you fail to comply with any term(s) of this Agreement. Upon termination of the Agreement, You shall cease all use of the Modustri App, and destroy all copies, full or partial, of the Modustri App. At Modusti’s request, you will provide Modustri with a written statement signed by you or your duly authorized representative certifying that You have complied with this provision. All provisions that would by their nature survive termination, will survive the termination of this Agreement for any reason.
You will take all necessary steps to prevent the misuse of, abuse of, or unauthorized access to the Modustri App with at least the same degree of care that you use to protect your own information of like kind, but in no event less than reasonable care.
This Agreement is between Modustri and You, and not with Apple, Inc. Apple, Inc. will NOT be responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty disclaimed hereunder. Modustri (and NOT Apple, Inc.) will be responsible for (a) any product warranties, whether express or implied by law (to the extent not effectively disclaimed); (b) any claims of You or any third party relating to the Modustri App or your possession and/or use of the Modustri App, including without limitation (i) product liability claims, (ii) any claim that the Modustri App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation; and (c) any third party claim that the Modustri App or your possession and use of the Modustri App infringes that third party’s intellectual property rights, as well as the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. Other agreements or terms may govern your acquisition or installation of iPad applications. If these terms are less restrictive upon you than the terms of those other agreements or terms, the more restrictive provisions shall apply. It is also understood and agreed that Apple, Inc. has no obligation whatever to furnish any maintenance or support services in relation to the Modustri App. You represent and warrant that you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties.
17.1 This Agreement and the documents referenced herein contain all of the understandings and agreements of the parties hereto in respect of the subject matter hereof as of the date hereof and any and all prior understandings and agreements, expressed or implied, between the parties hereto in respect of the subject matter hereof are superseded hereby. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof.
17.2 Modustri reserves the right, at its sole discretion, to change, modify, add, or remove portions of these terms and conditions at any time. You agree to review these terms and conditions periodically for changes. Your continued use of the Modustri App after the posting of changes constitutes your binding acceptance of such changes. If any such revision is unacceptable to you, your only remedy is to terminate your use of the Modustri App. For any material changes to these terms and conditions, such amended terms will automatically be effective thirty (30) days after they are initially posted and made available to You.
You may not use or otherwise export or re-export the Modustri App except as authorized by United States law and the laws of the jurisdiction in which the Modustri App was obtained. In particular, but without limitation, the Modustri App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You represent and warrant that your possession and use of the Modustri App will not violate any such laws and that You are not located in any such country or on any such list. You also agree that you will not use the Modustri App for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The laws of the State of Michigan, excluding its conflicts of law rules, govern this Agreement and your use of the Modustri App. Your use of the Modustri App may also be subject to other local, state, national, or international laws. This Agreement may be modified only in a writing signed by the duly authorized representatives of Modustri. You may not assign this Agreement or any other rights or obligations herein, voluntarily or involuntarily, including by change of control, merger, operation of law or in any other manner, without the express written consent of Modustri. The text of this Agreement may be written in multiple languages, including English. All language versions are deemed authentic, but the English language shall be the binding and controlling language for all matters relating to the meaning and interpretation of this Agreement.