End User License Agreement
Last Updated: Jun. 8 2020
This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User," "you," or “your”) and OneClick, LLC ("Company"). This Agreement governs your use of the CODE REPORTS application (including all related documentation, the "Mobile Application"). The Application is licensed, not sold, to you.
BY INSTALLING AND USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
- License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive and nontransferable license to:
- download, install and use the Mobile Application for your use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Mobile Application's documentation; and
- License Restrictions. Licensee shall not:
- copy the Mobile Application, except as expressly permitted by this license;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Application;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Application or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Mobile Application or any features or functionality of the Mobile Application, to any third party for any reason, including by making the Mobile Application available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Application.
- Reservation of Rights. You acknowledge and agree that the Mobile Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile Application under this Agreement, or any other rights thereto other than to use the Mobile Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company and its licensors and service providers reserves and shall retain their entire right, title and interest in and to the Mobile Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Payment Terms and Conditions for Content and Services. Certain Content and Services can be purchased by a Customer, either as an individual report purchase, or by purchasing a subscription to receive a variety of reports or services over a period of time. These purchases can be made by the Customer through the Company Website or the Mobile Application and are subject to the Terms of Sale and Subscription found at www.oneclickcode.com/Terms-of-Sale-and-Subscription-Agreement.
- Geographic Restrictions. The Content and Services are based in the state of Colorado in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
- Updates. Company may from time to time in its sole discretion develop and provide Mobile Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
- the Mobile Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Mobile Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Mobile Application and be subject to all terms and conditions of this Agreement.
- Third Party Materials and Third Party Indemnification. The Mobile Application may display, include or make available third-party content (including data, information, applications 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 Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company 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 at entirely at your own risk and subject to such third parties' terms and conditions.
- Term and Termination.
- The term of Agreement commences when you download the Mobile Application and will continue in effect until terminated by you or Company as set forth in this Section 10.
- You may terminate this Agreement by deleting the Mobile Application and all copies thereof from your Mobile Device.
- Company may terminate this Agreement at any time without notice, including if it ceases to support the Mobile Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- Upon termination:
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Mobile Application and delete all copies of the Mobile Application from your Mobile Device and account.
- Termination will not limit any of Company's rights or remedies at law or in equity.
- Disclaimer of Warranties. THE APPLICATION, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION OR CONTENT AND SERVICES PROVIDED UNDER ANY SUBSCRIPTION AGREEMENT OR SALE ARE PROVIDED TO LICENSEE ON AN "AS IS" AND “AS AVAILABLE” BASIS, AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, 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 APPLICATION, 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR 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. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE APPLICATION. NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE APPLICATION, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY 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 APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
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 COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend and hold harmless Company, its affiliates, licensors and service providers, and its officers, directors, employees, contractors, agents, 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 Mobile Application or your breach of this Agreement. Furthermore, you agree that OneClick, LLC assumes no responsibility for the content you submit or make available through this Mobile Application.
- Export Regulation. The Mobile Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Mobile Application to, or make the Mobile Application 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 making the Mobile Application available outside the US.
- Severability. 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.
- Governing Law. All matters relating to this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be 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 (whether of the State of Colorado or any other jurisdiction).
- Arbitration and Class Action Waiver. PLEASE READ THIS SECTION 17 BY AGREEING TO THIS AGREEMENT, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST COMPANY ON AN INDIVIDUAL BASIS IN ARBITRATION, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION 17, WHICH IS REFERRED TO AS THE “ARBITRATION AGREEMENT.” THIS ARBITRATION AGREEMENT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. IT ALSO CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
You and Company agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below in Section 17(e).
By agreeing to this Arbitration Agreement, you agree to resolve any and all disputes with Company as follows:
- Initial Dispute Resolution: Most disputes can be resolved without resorting to arbitration or litigation (as expressly permitted herein). Except for intellectual property and small claims court claims, the parties hereby agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Company’s support department, and such good faith negotiations shall be a condition prior to either party initiating a arbitration or litigation (as expressly permitted herein). You can reach Company's support department at firstname.lastname@example.org.
- Binding Arbitration: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute is initiated under the Initial Dispute Resolution provision above in Section 17 (a), then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement, the parties' relationship with each other, and/or your use of the application shall be finally settled by binding arbitration, as described below. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you, and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services provided under this Agreement.
- Where the relief sought is $10,000 or less and the party filing does not wish to bring the claim in small claims court, the arbitration will be conducted online by an online arbitration provider of our choosing in accordance with their applicable Arbitration Rules & Procedures effective at the time a claim is made. Currently, to start, you may initiate arbitration proceedings on the FairClaims website www.fairclaims.com.
- Where the relief sought is $10,001 or more, resolution shall be in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitration shall be conducted before a single arbitrator. The parties shall use their reasonable efforts to select a mutually acceptable arbitrator, however, if the parties have not selected a mutually acceptable arbitrator within thirty (30) days after the commencement of the arbitration, the arbitrator shall be selected in accordance with the rules of the applicable arbitration rules and procedures as set forth above.Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above in Section 17(a), then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement, the parties' relationship with each other, and/or your use of the application shall be finally settled by binding arbitration, as described below. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services provided under this Agreement.
- The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.
- The arbitrator's award shall be written and shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be conducted in the State of Colorado, United States of America. You and Company further agree to submit to the personal jurisdiction of any federal or state court in Denver County, Colorado in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Additionally, in any circumstances where this Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state courts or the federal courts located in Denver, Colorado, for such applicable purpose.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration in accordance with the terms and conditions of this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company as permitted under this Arbitration Agreement or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Class Action Waiver. You acknowledge and agree that you are waiving the right to participate as a plaintiff or class in any purported class action or representative proceeding. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions (including injunctive or other equitable relief), validity determinations, or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect such party’s intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, trade secrets, and other intellectual property rights, but specifically excluding privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
- All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Section 17(f) shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Agreement and this Arbitration Agreement shall continue in full force and effect.
- 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth in this Arbitration Agreement by sending (from the email address you use on your account with Company) written notice of your decision to opt out to code@OneClickcode.com with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of the later of the Effective Date of this Agreement or your first use of the account; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of this Arbitration Agreement. If you opt out of this Arbitration Agreement as set forth here this Section 17(h), Company also will not be bound by them.
- This Arbitration Agreement (including, without limitation, the Class Action Waiver provisions) shall survive any termination of your account and/or relationship with the Company.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding (including arbitration) is instituted or commenced by either party against the other party arising out of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and arbitration and/or court costs from the non-prevailing party.
- Waiver. 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.