Mobile Stack Experts Software License

PLEASE READ THE FOLLOWING MOBILE STACK EXPERTS SOFTWARE LICENSE CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND MOBILE STACK EXPERTS.

MOBILE STACK EXPERTS (“MSE”) IS WILLING TO LICENSE THE PRODUCTS DEFINED IN SECTION 1 BELOW ONLY ON THE CONDITION THAT YOU (“LICENSEE”) ACCEPT ALL OF THE TERMS CONTAINED IN THIS MOBILE STACK EXPERTS SOFTWARE LICENSE (“AGREEMENT”).

IF YOU ARE AGREEING TO THIS LICENSE ON BEHALF OF AN ENTITY, YOU CONSENT THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.

Subject of Agreement. This Agreement governs Licensee’s use of the software packages called “Hot Console,” “Hot Flash,” “Hot Brick,” and “Hot Looks” (the “Products”) consisting of executable files in machine code, source code files, object code, script files, data files, and all documentation and updates downloaded from or provided by MSE.
Software License. MSE grants Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide limited license without fees to integrate, bundle, install, execute, and use the Products for any legal private or public purpose, including personal use, educational use, commercial use, or evaluation. MSE reserves all rights not expressly granted in this license.
Governing Law. This Agreement, its interpretation, performance, and enforcement, and the rights and remedies of the Parties hereto shall be governed and construed according to the laws of the State of Colorado, without regard to or application of choice-of-law rules or principles.
1. The Parties consent to the personal jurisdiction of such courts and laws in any such proceeding. The parties hereto mutually acknowledge and agree that they shall not raise, in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the forgoing.
2. If a legal action or proceeding is commenced by either party in connection with the enforcement of this Agreement, the prevailing party shall be entitled to its costs and attorneys’ fees actually incurred in connection with such action or proceeding.
Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted, and the remainder of this Agreement shall remain in full force and effect.
Rights and Responsibilities.
1. Licensee acknowledges that MSE controls all right, title, and interest in the Products and all intellectual property rights relating hereto, which are provided to Licensee under this Agreement are copyrighted and licensed, not sold, by MSE.
2. Licensee may not do any of the following: (a) modify any part of the Products, except to the extent allowed in the documentation accompanying the Product; (b) rent, lease, lend, re-distribute, or encumber the Products; (c) remove or alter any proprietary legends or notices contained in the Products; or (d) decompile, or reverse engineer the Products (except to the extent permitted by applicable law).
3. No right, title or interest in or to any MSE trademark, service mark, logo or trade name or its licensors is granted under this Agreement without the prior written consent of MSE.
Disclaimer of Warranty. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, MSE PROVIDES THE PRODUCTS “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MSE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. The entire risk as to the quality and performance of the Products is with Licensee. Should it prove defective, Licensee shall assume the cost of all necessary servicing, repair, or correction.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL MSE OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, DATA, OR DATA USE, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCTS, EVEN IF MSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will MSE’s liability to Licensee, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by Licensee for the Products under this Agreement.
Third-Party Software. Licensee agrees to be bound by all of the terms and conditions applicable to any third-party software licenses to software items embedded in or distributed with the Products. MSE may provide certain notices to Licensee in the Products’ documentation, code comments, readmes or notice files in connection with such third party technology. Third party technology will be licensed to Licensee either under the terms of this Agreement or, if specified in the documentation, readmes or notice files, under Separate Terms. Licensee’s rights to use Separately Licensed Third Party Technology under Separate Terms are not restricted in any way by this Agreement. However, for clarity, notwithstanding the existence of a notice, third party technology that is not Separately Licensed Third Party Technology shall be deemed part of the Products and is licensed to Licensee under the terms of this Agreement.
1. “Separate Terms” refers to separate license terms that are specified in the Products’ documentation, readmes or notice files and that apply to Third-Party Software.
2. “Third-Party Software” refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement.
Export Control. Licensee agrees to comply with export laws and regulations governing Licensee’s use of the Products (including technical data) provided under this Agreement. Licensee agrees that no data, information, and/or Products (or direct products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. Licensee shall indemnify and hold MSE harmless from any claim arising out of a breach of Export Control.
U.S. Government End Users. Any MSE Products, documentation, and/or related materials delivered to the U.S. Government End Users are “commercial items” pursuant to the applicable Federal Acquisition Regulation and agency-specific supplemental regulations. As such, use, duplication, disclosure, modification, and adaptation of MSE Products, documentation, and/or related materials, shall be subject to applicable license terms and license restrictions. No other rights are granted to the U.S. Government.
Termination. The Agreement is effective on the date Licensee receives the Product and remains effective until terminated. Licensee rights under this Agreement will terminate immediately without notice if there is a material breach or any action by Licensee in derogation of MSE’s and/or its licensors’ rights to the Products. Sections 3 onwards, inclusive, will survive termination of the Agreement.
1. MSE may terminate this Agreement immediately should any part of the Products become or in MSE’s reasonable opinion likely to become the subject of a claim of intellectual property infringement or trade secret misappropriation. Upon termination, Licensee will cease use of and destroy all copies of the Products under Licensee’s control and confirm compliance in writing to MSE.
2. Neither termination of this Agreement nor any deletion or removal of the Products shall limit any obligations Licensee may have to MSE, or any rights and/or remedies that MSE may have with respect to any past or future infringing use of the Products (including but not limited to any use of the Products outside the scope of the license provided in the Agreement)
Miscellaneous. This Agreement is the entire agreement between the Licensee and MSE relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement.
1. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
2. This Agreement will be construed under the laws of the State of Colorado. Licensee and MSE agree to submit to the exclusive jurisdiction of, and venue in, the courts of Denver in Colorado in any dispute arising out of or relating to this Agreement.
3. If a legal action or proceeding is commenced by either party in connection with the enforcement of this Agreement, the prevailing party shall be entitled to its costs and attorney fees actually incurred in connection with such action or proceeding.