Embrace End User License Agreement
1. BINDING EFFECT. THIS IS A BINDING AGREEMENT BETWEEN YOU AND TRANQUILITY LIFESTYLE SOLUTIONS, INC. (“TLS”). BY CLICKING ON THE “ACCEPT” BUTTON TO BE ABLE TO ACCESS THE EMBRACE™ SERVICE (THE “SERVICE”) AND APP (THE “SOFTWARE”), YOU AGREE TO BECOME A PARTY TO AND TO ABIDE BY THIS END USER LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT” AND DO NOT USE THE SERVICE OR SOFTWARE. SELECTING “ACCEPT” WILL BE THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON A WRITTEN CONTRACT, AND EQUALLY BINDING. YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO BE ABLE TO USE THE SOFTWARE TO BE ABLE TO ACCESS THE SERVICE.
This Agreement is entered into as of the date that you accept the terms hereof (“Effective Date”).
2. LICENSE. Subject to all of the terms and conditions herein and, in the applicable Embrace Service Agreement (“Service Agreement”) between your company (“Customer”) and TLS, TLS hereby grants you a limited, non-transferable, revocable, terminable, non-exclusive license, without the right to sublicense, (i) to install and use the Software and the accompanying written materials we provide (“Documentation”); and (ii) create your account solely to access and use the Service and solely incident to your job function at Customer. The term of your license (“License Period”) shall commence on the effective date of the Service Agreement, and shall end on the earlier of, the date that the Service Agreement terminates, or TLS’s termination of this Agreement. The Software and Service will not be available for use once the License Period has terminated.
3. PERMITTED INSTALLATION; SUBSCRIPTION REQUIRED. You may download and install the Software on Customer mobile devices only. The Customer will need to enter into a Service Agreement and subscribe to the Service in order for you to be able to access and use the Service.
4. DEVICES. The Service relies upon and interoperates with various third party sensors and monitoring devices, as more fully set forth in the Documentation (“Devices”). TLS is not a manufacturer of Devices. CUSTOMER IS SOLELY RESPONSIBLE FOR THE MAINTENANCE AND REPAIR OF THE DEVICES AND FOR ANY CONSEQUENCES OF INADEQUATE REPAIR OR MAINTENANCE OF DEVICES WHICH CAUSE ANY SERVICE ERRORS OR FAILURES.
5. RESTRICTIONS. The Software, Documentation and the Service are copyrighted by TLS. You acknowledge that the Software, the Service (and their respective structure, organization, and source code) constitute valuable trade secrets of TLS. Accordingly, you must not: (a) copy, modify, adapt, alter, translate, port or create derivative works of the Software or other TLS materials, including Documentation; (b) permit third parties to use the Software; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Software; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or any other proprietary information or trade secrets from the Software; (e) remove, alter, or obscure any proprietary notices (including, without limitation, any copyright and trademark notices) of TLS or its licensors and suppliers from the Software or Documentation; (f) disseminate performance-related information relating to the Software; or (g) otherwise use, reproduce, display or copy the Software. You shall be exclusively responsible for the supervision, management, and control of your use of the Software.
6. OWNERSHIP; RESERVATION OF RIGHTS. You agree that TLS shall own and retain all right, title, and interest to the Software and to the Service, to enhancements, improvements, and derivatives, and to all copyright, trademark, trade secret and all other intellectual and proprietary rights (“Intellectual Property Rights”) related thereto. Except as expressly licensed to you herein, TLS on its behalf and on behalf of its licensors reserves all right, title and interest in the Software, the Service and Documentation and all associated copyrights, trademarks, and other Intellectual Property Rights therein. This license is limited to the Intellectual Property Rights of TLS and its licensors in the Software and does not include any rights to other patents or Intellectual Property Rights. Notwithstanding anything to the contrary herein, all rights not specifically granted in the license set forth above shall be reserved and remain always with TLS.
7. COPYRIGHTS. All title and copyrights in and to the Software, the accompanying Documentation, and the Service are owned by TLS or its licensors. The Software and the Service are protected by copyright laws and international treaty provisions. Therefore, when using the Software, you agree to obey the law and to respect the Intellectual Property Rights of others. Your use of the Software is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third-party rights.
8. TRADEMARKS. All names of products and companies used in the Documentation, the Software, or other documentation are trademarks of their corresponding owners. Their use in this document is intended to be following the respective guidelines and licenses.
10. CONFIDENTIALITY. You shall maintain as confidential all TLS proprietary and confidential information disclosed or learned during the term of this Agreement (“Confidential Information”). The Software and Documentation shall be deemed to be TLS’s Confidential Information. You shall not use the Confidential Information for any other purpose or disclose, transfer or otherwise convey such Confidential Information to any third party without the prior written consent of TLS. The foregoing obligations of confidentiality and non-use shall continue in effect, with respect to each item of Confidential Information, for so long as none of the below exceptions apply thereto. The foregoing obligations of confidentiality and nonuse shall not apply to information (a) that was lawfully in your possession prior to the date that such information is disclosed or learned, as evidenced by your contemporaneous written records; (b) becomes public or available to the public without your fault or omission; (c) has been lawfully obtained by you from a third party which is in lawful possession of such information without any obligation of confidentiality; or (d) is required to be disclosed by law, in which case you will give TLS as much advance notice of the proposed disclosure as is practical (including a copy of any written request or order), and will cooperate with TLS in any effort to limit or restrict such disclosure, via a protective order or otherwise.
12. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. EXCEPT AS MAY BE PROVIDED IN THE SERVICE AGREEMENT, TLS MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE OR THE SERVICE AND TLS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. UNDER NO CIRCUMSTANCE SHALL TLS BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM MISUSE, ABUSE OR MOBILE DEVICE OR DEVICE MALFUNCTION, OR IF THE SOFTWARE HAS BEEN INSTALLED, USED, MODIFIED OR OPERATED OTHER THAN IN ACCORDANCE WITH INSTRUCTIONS FURNISHED BY TLS OR OTHER THAN AS PERMITTED BY THIS AGREEMENT. TLS DOES NOT WARRANT THAT THE SOFTWARE WILL BE ADEQUATE FOR YOUR PURPOSES OR THAT USE OF THE SOFTWARE WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, OR SECURE. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES FROM TLS OR ANY THIRD PARTY.
13. LIMITATIONS ON LIABILITY. IN NO EVENT WILL TLS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, INCLUDING THE SERVICE APP, ANY DEVICES, ANY CONTENT ON THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DEATH, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN ANY CASE, TLS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO U.S. $10.00; BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14. TERMINATION. This Agreement and the license granted herein shall automatically terminate without notice upon the occurrence of any of the following: (i) Your breach of any of the terms contained herein, which is not cured within five (5) business days after TLS’s notice to you; (ii) You attempt to use, copy, license, or convey the Software in any manner contrary to the terms of this Agreement or in derogation of TLS’s Intellectual Property Rights therein; or (iii) the Service Agreement terminates or lapses under its terms. Immediately upon termination of this Agreement, whether or not you receive notice of such termination, the license shall be immediately terminated, and you shall not have any further rights to use the Software or the Service. Upon a termination, you shall immediately delete the Software from your mobile devices. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
15. GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the law of the State of New Jersey without reference to its choice of law rules. This Agreement shall be deemed to be performed in New Jersey. Both parties irrevocably submit to the jurisdiction of the federal district court located in Trenton, New Jersey for any action or proceeding regarding this Agreement, and both parties waive any right to object to the jurisdiction or venue of the United States district court in Trenton, New Jersey. In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
16. ASSIGNMENT. You shall not assign or otherwise transfer your rights or obligations under this Agreement to a third party unless such assignment is approved in writing by TLS. This Agreement shall inure to the benefit of and bind the parties’ successors and permitted assigns. IF YOU TRANSFER POSSESSION OF THE SOFTWARE TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED.
17. TAXES. You shall be responsible for all sales, use and other taxes and all applicable duties, levies and export fees and similar charges imposed by any federal, state, or local government entity on the Software licensed to you, excluding taxes based solely upon TLS’s income.
18. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be deleted and re-interpreted to the extent necessary to comply with law and interpreted and substituted to accomplish the objectives of such provision to the greatest extent possible under applicable law. The remaining provisions of this Agreement will continue in full force and effect.
19. FORCE MAJEURE. Other than for your payment obligations, neither party shall be liable for any delay or nonperformance due to acts of God, natural casualties, pandemics and delays due to pandemics, war, terrorism, material shortages, transportation and communications delays, energy shortages and disruptions, trade embargoes, governmental regulations, strikes, civil unrest and/or other causes beyond the reasonable control of a party (a “Force Majeure Event”). If a Force Majeure Event occurs, the party whose performance is affected shall give the other party written notice within ten (10) days of such occurrence, detailing the circumstances of the Force Majeure Event and an estimate of the anticipated delay in performance. The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of the Force Majeure Event. Performance shall be promptly resumed upon termination of the Force Majeure Event.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. Unless expressly accepted in writing by a party in a manner that specifically references this Agreement, any terms on any purchase order or similar document submitted by one party to the other party that purport to amend, alter, modify, or add to this Agreement are hereby deemed to be offers to amend this Agreement that are rejected by the receiving party, and such terms will have no force or effect.
21. ARBITRATION. At TLS’ sole discretion, it may require you to submit any disputes arising from this Agreement or the Service, including disputes arising from or concerning the interpretation, violation, invalidity, nonperformance, or termination of this Agreement, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New Jersey law.
22. LIMITATION ON TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
23. ACKNOWLEDGEMENT.BY CLICKING “ACCEPT”, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT; THAT YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO USE THE SOFTWARE AND SERVICE.
Last Updated: 8/16/2022 V-1.0
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