This End User License Agreement (“Agreement”) is a binding agreement between you and the company you represent (“End User” or “you”) and Earth Science Systems, LLC, a Colorado limited liability company (“ESS”). This Agreement governs your use of the ESS’s software, whether incorporated into a mobile application, integrated into ESS’s or a third-party’s product, software or other medium, or provided on a stand-alone basis, including all related documentation (the “Software”). The Software is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND THE ESS’S PRIVACY POLICY AND AGREE THAT YOU ARE LEGALLY BOUND BY SUCH TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE AND DELETE IT FROM YOUR DEVICE.
Subject to the terms of this Agreement, ESS grants you a limited, non-exclusive, and nontransferable license to:
You shall not:
You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. ESS and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, subject to rights licensed and expressly granted to you in this Agreement. You agree to safeguard the Software from infringement, misappropriation, theft, misuse, or unauthorized access.
You acknowledge that when you download, install, or use the Software, ESS may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Software. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Software or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others. You represent and warrant that all information you contribute or provide in connection with your use of the Software will be current, complete and accurate, and that you will update it as necessary to maintain its completeness and accuracy. If you choose, or are provided with, a username, password, or any other piece of information as part of ESS’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity, whether such disclosure is made by written or verbal communication, or via social media, blog, or other media-based platform. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Software or portions of the Software using your username, password, or other security information. You agree to notify ESS immediately of any unauthorized access to or use of your username or password or any other breach of security. You are responsible for ensuring that you exit your account at the end of each session. You are responsible for the actions of anyone using your account, whether with or without your permission, and you may be held liable for any losses incurred by ESS, its members, managers officers, directors, employees, agents, affiliates, successors, and assigns due to someone else’s use of your account, password, or other security information. You should use particular caution when accessing your account from a public or shared network so that others are not able to view or record your password or other personal information. All information ESS collects through or in connection with this Software is subject to ESS’s Platform Terms of Use and Privacy Policy. By downloading, installing, using, and providing information to or through this Software, you consent to all actions taken by ESS with respect to your information in compliance with the Platform Terms of Use and Privacy Policy.
The Software may provide you with access to the ESS Platform as defined in the Platform Terms of Use and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Software may be hosted on the ESS Platform (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by the Platform Terms of Use, which is incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of the Platform Terms of Use and Privacy Policy, and your failure to do so will restrict you from accessing or using certain of the Software’s features and functionality. Any violation of the Platform Terms of Use will also be deemed a violation of this Agreement.
ESS does not represent or warrant that the Content and Services, the Software, or any part thereof, is appropriate or available for use in any particular jurisdiction. If you choose to access the Content and Services or the Software, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules, and regulations. ESS may limit the availability of the Content and Services or the Software, in whole or in part, to any person, geographic area, or jurisdiction that ESS chooses, at any time and in the ESS’s sole discretion. By using the Software and submitting any information, you consent to the transfer of such information, including personal information, to other countries, such as the United States, which may provide a different level of data security than in your country of residence.
ESS may from time to time, in its sole discretion, develop and provide Updates for the Software (collectively, including related documentation, “ESS Updates”). ESS Updates may also modify or delete in their entirety certain features and functionality. You agree that ESS has no obligation to provide any ESS Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either:
The Software may display, include, or make available third-party content (including data, information, software, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that ESS is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. ESS does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ESS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ESS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, ACHIEVE ANY INTENDED RESULTS, BE ACCURATE, COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, PRODUCTS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The information provided on or through the Software or in connection with the Software is made available for your convenience and for general information purposes only and is subject to change without notice. ESS DOES NOT WARRANT THE ACCURACY, TIMELINESS, COMPLETENESS, OR USEFULNESS OF THIS INFORMATION OR THAT THE INFORMATION WILL SERVE YOUR PARTICULAR PURPOSES. ALL INFORMATION IS SUBJECT TO CHANGE. Any reliance you place on such information is strictly at your own risk. ESS disclaims all liability and responsibility arising from any reliance placed on such information or materials by you, or by anyone who may be informed of any of its contents.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ESS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR THE CONTENT AND SERVICES FOR:
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ESS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to indemnify, defend, and hold harmless ESS and its members, managers, officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement, including but not limited to the content you submit or make available through this Software.
The Software may be subject to United States export control laws, including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise using or accessing the Software outside the US.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule. In the event of a direct conflict between the provisions of this Agreement and any mandatory provision of applicable law, the mandatory provision of applicable law will control; in all other events, the provisions of this Agreement will control.
You unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against ESS arising out of, relating to, or connected in any way with the Software or the determination of the scope or applicability of this Agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in Denver, Colorado; (4) the arbitrator’s decision shall be controlled by this Agreement and any of the other agreements referenced herein that you may have entered into in connection with ESS; (5) the arbitrator shall apply Colorado law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and (7) the arbitrator shall not have the power to award punitive damages against you or ESS. If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor ESS shall be entitled to arbitrate their dispute.
ANY CAUSE OF ACTION, CLAIM, OR DEMAND FOR ARBITRATION, YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM WILL BE PERMANENTLY BARRED. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
This Agreement, the Platform Terms of Use, Customer Agreement, Privacy Policy, and other terms referenced in this Agreement, constitute the entire agreement between you and ESS with respect to the Software and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.