End User License Agreement.
IMPORTANT. READ CAREFULLY: This End User License Agreement ("EULA") is a legal agreement between you (either an individual or an entity) and USA 111, Inc. ("USA 111") for software, owned by USA 111 for its brand, iRULU and its affiliated companies and its third party suppliers and licensors, that accompanies this EULA, which includes computer software and may include associated media, printed materials, "online" or electronic documentation in connection with your use of this device ("Software"). This device requires the use of preloaded software in its normal operation. BY USING THE DEVICE OR ITS PRELOADED SOFTWARE, YOU ACCEPT THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE DEVICE OR THE SOFTWARE.
1. GRANT OF LICENSE. USA 111 grants you the following rights provided that you comply with all terms and conditions of this EULA: You may install, use, access, display and run one copy of the Software on the mobile device to which it came pre-installed, and you may not make the Software available for any other device. Certain items of the Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA. We will make the applicable open source licenses available to you on the Legal Notices section of the Settings menu of your device.
2. RESERVATION OF RIGHTS AND OWNERSHIP. USA 111 reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. USA 111 or its suppliers own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold.
3. LIMITATIONS ON END USER RIGHTS. You may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Software (except and only to the extent that such activity is expressly permitted by applicable law not withstanding this limitation), or modify, or disable any features of, the Software, or create derivative works based on the Software. You may not rent, lease, lend, sublicense or provide commercial hosting services with the Software.
5. SOFTWARE UPDATES. USA 111 may provide to you or make available to you updates, upgrades, supplements and add-on components (if any) of the Software, including bug fixes, service upgrades (parts or whole), products or devices, and updates and enhancements to any software previously installed (including entirely new versions), (collectively “Update”) after the date you obtain your initial copy of the Software to improve the Software and ultimately enhance your user experience with your device. This EULA applies to all and any component of the Update that USA 111 may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with such Update. To use Software provided through Update, you must first be licensed for the Software identified by USA 111 as eligible for the Update. After the Update, you may no longer use the Software that formed the basis for your Update eligibility. The updated Software version may add new functions and, in some limited cases, may delete existing functions. While the Update will be generally available, in some limited circumstances, the Software updates will only be offered by your network carrier, and such Software updates will be governed by your contractual relationship with your network carrier. With the “Automatic Update” function enabled (as in the default setting in the System Update menu in the Setting), your device downloads some Updates automatically from time to time. Your device will, however, ask for your consent before installing any Update. If you choose to disable the “Automatic Update” function, then you can check the availability of new Updates by clicking on the “Check Update” menu in the Setting. We recommend that you check availability of any new Updates periodically for optimal use of your device. If you want to avoid any use of network data for the Update downloads, then you should choose the “Wi-Fi Only” option in the Setting. Regardless of the option you choose, the “Automatic Update” function downloads Updates only through Wi-Fi connection.
6. INTERNET ACCESS LIMITATIONS. Some features of the Software may require your device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. Unless your device is connected to the internet through a Wi-Fi connection, the Software will access through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the Software may be affected by the suitability and performance of your device hardware or data access.
7. SOFTWARE TRANSFER. You may not transfer this EULA or the rights to the Software granted herein to any third party unless it is in connection with the sale of the mobile device which the Software accompanied. In such event, the transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA) and you may not retain any copies of the Software. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms.
8. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations.
9. TERMINATION. This EULA is effective until terminated. Your rights under this License will terminate automatically without notice from USA 111 if you fail to comply with any of the terms and conditions of this EULA. Upon termination of this EULA, you must cease all use of the Software and destroy all copies, full or partial, of the Software.
10. DISCLAIMER OF WARRANTY. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY ACCOMPANYING YOUR DEVICE, ALL SOFTWARE PROVIDED BY USA 111 WITH THIS MOBILE DEVICE (WHETHER INCLUDED WITH THE DEVICE, DOWNLOADED, OR OTHERWISE OBTAINED) IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND FROM USA 111, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, USA 111 DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM USA 111 OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY USA 111 OF WARRANTY REGARDING THE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM USA 111.
12. USA 111 APPLICATIONS. Certain USA 111 applications and services may be included with, or downloaded to, this mobile device. Many of them require USA 111 Services membership registration (“USA 111 Account”), and your rights and obligations will be set forth in separate USA 111 Account terms and conditions and privacy policies. There are non-USA 111 Account applications and services that require your consent to their separate terms and conditions and privacy policies. You expressly acknowledge and agree that your use of such applications and services will be subject to the applicable terms and conditions and privacy policies.
13. LIMITATION OF LIABILITY. USA 111 WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF USA 111 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.NOTWITHSTANDING THE FOREGOING, USA 111 TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SOFTWARE OR THIRD PARTY APPLICATIONS ON THIS MOBILE DEVICE, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE AMOUNT PURCHASER PAID SPECIFICALLY FOR THIS MOBILE DEVICE OR ANY SUCH THIRD PARTY APPLICATION THAT WAS INCLUDED WITH THIS MOBILE DEVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 10, 11, 12 AND 13) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
14. U.S. GOVERNMENT END USERS RESTRICTED RIGHTS. The Software is licensed only with "restricted rights" and as "commercial items" consisting of "commercial software" and "commercial software documentation" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Products are provided only with "restricted rights" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Software and Products are provided subject to Federal Acquisition Regulation (FAR) 52.227.19.
15. APPLICABLE LAW. This EULA is governed by the laws of the jurisdiction where you are a resident or, if a resident of the United States, by the laws of the state of Ohio, without regard to its conflict of law provisions. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16. DISPUTE RESOLUTION. (a) Non-United States residents. If a dispute, controversy or difference arising in any way from this EULA or your use of the Software is not amicably settled, it shall be subject to the non-exclusive jurisdiction of the courts of the jurisdiction where you are a resident. Notwithstanding the foregoing, USA 111 may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. (b) United States residents. ALL DISPUTES WITH USA 111 ARISING IN ANY WAY FROM THIS EULA OR YOUR USE OF THE SOFTWARE SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A COURT OR JURY. Any such dispute shall not be combined or consolidated with any other person’s or entity’s claim or dispute, and specifically, without limitation of the foregoing, shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law. The arbitration shall be conducted according to the American Arbitration Association (AAA) Commercial Arbitration Rules applicable to consumer disputes. This arbitration provision is entered pursuant to the Federal Arbitration Act. The laws of the State of Ohio, without reference to its choice of aws principles, shall govern the interpretation of the EULA and all disputes that are subject to this arbitration provision. The arbitrator shall decide all issues of interpretation and application of this arbitration provision and the EULA. For any arbitration in which your total damage claims are $5,000.00 or less ("Small Claim"), the arbitrator may not award reasonable attorney fees, expert witness fees and costs as part of any award, but may grant USA 111 its attorney fees, expert witness fees or costs if it is determined that the claim was brought in bad faith. In a Small Claim case, the parties shall each pay one-half of the total administrative, facility and arbitrator fees. Administrative, facility and arbitrator fees for arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00 ("Large Claim") shall be determined according to AAA rules. In a Large Claim case, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs. Judgment may be entered on the arbitrator's award in any court of competent jurisdiction. This arbitration provision also applies to claims against USA 111’s employees, representatives and affiliates if any such claim arises from the licensing or use of the Software. You may opt out of this dispute resolution procedure by providing notice to USA 111 no later than 30 calendar days from the date of the first consumer purchaser’s purchase of this device. To opt out, you must send notice by e-mail to firstname.lastname@example.org, with the subject line: "Arbitration Opt Out." You must include in the opt out e-mail (a) your name and address; (b) the date on which the device was purchased; (c) the device model name or model number; and (d) the IMEI or MEID or Serial Number, as applicable, if you have it (the IMEI or MEID or Serial Number can be found (i) on the device box; (ii) on the device information screen, which can be found under "Settings;" (iii) on a label on the back of the device beneath the battery, if the battery is removable; and (iv) on the outside of the device if the battery is not removable). Alternatively, you may opt out by calling 614-836-0241 no later than 30 calendar days from the date of the first consumer purchaser's purchase of the device and providing the same information. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure. Opting out of this dispute resolution procedure will not affect your use of the device or its preloaded Software, and you will continue to enjoy the benefits of this license.
17. ENTIRE AGREEMENT; SEVERABILITY. This EULA is the entire agreement between you and USA 111 relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.