End-User License Agreement (“Agreement”)
Last updated: April 6, 2023
PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THIS SOFTWARE, YOU (HEREINAFTER “CUSTOMER”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS UNDER SECTION 4.2, LIMITED WARRANTY UNDER SECTION 11, LIMITATION OF LIABILITY UNDER SECTION 12, AND SPECIFIC PROVISIONS AND EXCEPTIONS. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SOFTWARE.
Customer may have another written agreement directly with Nagle Energy Solutions (e.g., a volume license agreement) that supplements or supersedes all or portions of this agreement. This NES Software is LICENSED, NOT SOLD, only in accordance with the terms of this agreement. Use of some NES and some non-NES materials and services included in or accessed through the Software may be subject to additional terms and conditions.
- Interpretation and Definitions
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
For the purposes of this End-User License Agreement:
- Customer means the individual accessing or using the Software or the company, or other legal entity on behalf of which such individual is accessing or using the Software, as applicable.
- Nagle Energy Solutions or NES (referred to as either “NES”, “We”, “Us” or “Our” in this Agreement) refers to Nagle Energy Solutions, San Mateo, CA.
- Agreement means this End-User License Agreement that forms the entire agreement between Customer and NES regarding the use of the Software.
- Software means the software program provided by NES downloaded by Customer to a Device, named NES Software.
- Content refers to content such as text, images, or other information that can be posted, uploaded, linked to or otherwise made available by You, regardless of the form of that content.
- Device means any device that can access the Software such as a computer, a cellphone or a digital tablet.
- Third-Party Services means any services or content (including data, information, applications and other products services) provided by a third-party that may be displayed, included or made available by the Software.
By clicking the “I Agree” button, downloading or using the Software, Customer is agreeing to be bound by the terms and conditions of this Agreement. If Customer does not agree to the terms of this Agreement, do not click on the “I Agree” button, Customer should not download or use the Software.
This Agreement is a legal document between Customer and NES, and it governs the use of the Software made available to Customer by NES.
The Software is licensed, not sold, to You by the Company for use strictly in accordance with the terms of this Agreement.
- Intellectual Property Ownership
The Software and any authorized copies that Customer makes are the intellectual property of and are owned by NES and its suppliers. The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of NES and its suppliers. The Software is protected by law, including but not limited to the patent and copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant Customer any intellectual property rights in the Software. All rights not expressly granted are reserved by NES and its suppliers.
4.1 Scope of License
NES grants Customer a revocable, non-exclusive, non-transferable, limited license to download, install and use the Software strictly in accordance with the terms of this Agreement and Customer’s purchase of NES product(s).
NES reserves the right to adjust its licensing fees and terms at any time based on, without limitation, market conditions, new services and features, and marketing/promotional opportunities.
4.2 License Restrictions
Pursuant to this Agreement, Customer agrees not to, and Customer will not permit others to:
- License, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party.
- Modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Software. Reverse engineering includes, without limitation, decompiling, disassembly, sniffing, peeling semiconductor components, or otherwise deriving source code.
- Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Company or its affiliates, partners, suppliers or the licensors of the Software.
NES reserves the right to immediately terminate Customer’s license upon notice of Customer’s breach of the License Restrictions and will seek damages to the maximum allowed under applicable laws for any damages arising out of Customer’s breach of this Agreement (including Licensing Restrictions).
- Modifications to the Software
NES reserves the right to modify, suspend or discontinue, temporarily or permanently, the Software or any service to which it connects, with or without notice and without liability to Customer.
- Updates to the Software
The Company may from time to time provide enhancements or improvements to the features/functionality of the Software, which may include patches, bug fixes, updates, upgrades and other modifications.
Updates may modify or delete certain features and/or functionalities of the Software. Customer agrees that NES has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Software to Customer.
Customer further agrees that all updates or any other modifications will be (i) deemed to constitute an integral part of the Software, and (ii) subject to the terms and conditions of this Agreement.
- Maintenance and Support
NES does not provide any maintenance or support for the download and use of the Software. To the extent that any maintenance or support is required by applicable law, NES shall be obligated to furnish any such maintenance or support.
- Third-Party Services
The Software may display, include or make available third-party content (including data, information, Software and other products services) or provide links to third-party websites or services.
You acknowledge and agree that NES shall not be responsible for any Third-party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. NES does not assume and shall not have any liability or responsibility to You or any other person or entity for any Third-party Services.
Customer must comply with applicable Third parties’ Terms of agreement when using the Software. Third-party Services and links thereto are provided solely as a convenience to Customer and Customer’s access and use them entirely at Customer’s own risk and subject to such third parties’ Terms and conditions.
- Term and Termination
This Agreement shall remain in effect until terminated by You or NES. NES may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
This Agreement will terminate immediately, without prior notice from NES, in the event that Customer fails to comply with any provision of this Agreement. Customer may also terminate this Agreement by deleting the Software and all copies thereof from Customer’s Device or from Customer’s computer.
Upon termination of this Agreement, Customer shall cease all use of the Software and delete all copies of the Software from Customer’s Device.
Termination of this Agreement will not limit any of NES’s rights or remedies at law or in equity in case of breach by Customer (during the term of this Agreement) of any of Customer’s obligations under the present Agreement.
Customer agrees to indemnify and hold NES and its subsidiaries, affiliates, officers, employees, agents, partners and licensors (if any) harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of the Customer’s: (a) use of the Software; (b) violation of this Agreement or any law or regulation; or (c) violation of any right of a third party.
- No Warranties
The Software is provided to Customer “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law. NES, 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, NES provides no warranty or undertaking, and makes no representation of any kind that the Software will meet Customer’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
Without limiting the foregoing, neither NES nor any of NES’s provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Software, or the information, content, and materials or products included thereon; (ii) that the Software will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Software; or (iv) that the Software, its servers, the content, or e-mails sent from or on behalf of NES are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to Customer. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law. NES does not seek to limit its warranty or remedies to any extent not permitted by law.
- Limitation of Liability
Notwithstanding any damages that Customer might incur, the entire liability of NES and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by Customer for the Software or through the Software.
To the maximum extent permitted by applicable law, in no event shall NES or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Software, third-party software and/or third-party hardware used with the Software, or otherwise in connection with any provision of this Agreement), even if NES or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer. NES does not seek to limit its warranty or remedies to any extent not permitted by law.
- Severability and Waiver
If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.
- United States Legal Compliance
Customer acknowledges that the Software is subject to the U.S. Export Administration Regulations (the “EAR”) and that Customer will comply with the EAR. Customer will not export or re-export the Software, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions (including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) any end user whom Customer knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems, or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local laws in Customer’s jurisdiction which may impact its right to import, export or use the Software. If NES has knowledge that a violation has occurred, NES may be prohibited from providing maintenance and support for the Software.
- Changes to this Agreement
NES reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, NES will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at the sole discretion of NES.
By continuing to access or use the Software after any revisions become effective, Customer agrees to be bound by the revised terms. If Customer does not agree to the new terms, Customer is no longer authorized to use the Software.
- Governing Law
This Agreement shall be governed by, construed, interpreted and enforced according to the laws of the United States and the State of California. Each party to this Agreement hereby irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement or any agreements or transactions contemplated hereby may be brought in the California Superior Court in San Mateo County, or of the United States of America for the Northern District of California, and hereby expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum. This agreement will not be governed by the following, the application of which is hereby expressly excluded: (i) the conflict of law rules of any jurisdiction, (ii) the United Nations Convention on Contracts for the International Sale of Goods, and (iii) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction. The laws of the Country, excluding its conflicts of law rules, shall govern this Agreement and your use of the Application. Your use of the Application may also be subject to other local, state, national, or international laws.
- Entire Agreement
The Agreement constitutes the entire agreement between Customer and NES regarding the Customer’s use of the Software and supersedes all prior and contemporaneous written or oral agreements between Customer and NES.
Customer may be subject to additional terms and conditions that apply when Customer uses or purchases other NES services, which the NES will provide to Customer at the time of such use or purchase.
- Contact Us
If you have any questions about this Agreement, You can contact Us: