End User License Agreement (EULA)
Hui Car Share End User License Agreement (EULA)
Servco Mobility Lab, LLC dba Hui Car Share (“Hui Car Share”), Servco Pacific Inc. (“Servco”) and our Licensors (defined below) (collectively, “Us,” “We,” or “Our”) provides a Mobile App (defined below) to provide access to vehicles and other property and services offered by Hui Car Share and Servco (collectively, the “Services”). Licensors means any third party that Hui Car Share and Servco may from time to time contract with in order to provide Services to you.
LICENSE TO USE THE MOBILE APP. The Mobile App is licensed to You and not sold to You. You may install or access the Mobile App onto Your mobile device(s) as set forth in this EULA. Subject to Your agreement to and compliance with this EULA, We hereby grant You a limited, non-exclusive, non-sublicensable, non-transferable license (as applicable) to (a) install or access the Mobile App on one or more compatible mobile device(s) owned by You or under Your legitimate control, and (b) use the Mobile App to view the documentation, materials, information, and data presented to You via the Mobile App (collectively, the “Materials“), and (c) input data and other information via the Mobile App. All use of the Mobile App is subject to this EULA. If the Mobile App requires activation through account registration, You agree that You will complete the activation process providing Us with accurate information. Your use of the Mobile App may be suspended until You complete the activation and/or registration process or in the event that You fail to maintain accurate account information. We reserve all rights not expressly granted to You in this EULA. As used herein, “Mobile App” means the mobile application and the software as a service solution that is hosted by or on behalf of Us that interoperates and powers the mobile application, including without limitation, related features and functionality and all improvements, modifications, derivative works,
updates, fixes, and releases to any of the foregoing, and related software, products, services, information, and materials (including related documentation, content, materials, digital images, stock photographs, clip art, fonts, sounds or other artistic works provided in conjunction therewith) as licensed by Us to You through this EULA. You have no right to receive, use or examine any source code or design documentation relating to the Mobile App. You expressly acknowledge and agree that We are entitled, without limiting any of Our other remedies at law or equity, to seek injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach in addition to any other remedies
YOUR RESPONSIBILITIES WHILE USING THE MOBILE APP. With regard to Your Use of the Mobile App under this EULA, You have certain responsibilities. You may not, whether yourself or through any other means or person, (i) sell, rent, lease, re-sell, loan or otherwise provide access to the Mobile App to any third party; (ii) except to the extent that applicable law permits such acts notwithstanding any contractual prohibition, reverse engineer or decompile the Mobile App or take any other action to discover the source code or underlying ideas or algorithm of any components thereof or any file formats, data structures, or other aspects of the Mobile App; (iii) modify, disassemble, or post, publish, or create derivative works based on the Mobile App without Our advance consent; (iv) remove, modify or obscure any product or service identifier, copyright, trademark or other proprietary rights notice or other notices, instructions, disclaimers, legends, trade or service marks, brand names, and the like from any part of the Mobile App related documentation, or packaging; (v) transmit or otherwise make available in connection with the Mobile App any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) sell, license, or exploit for any commercial purposes any use of or access to the Mobile App; (vii) transfer or assign Your Mobile App accounts’ password, even temporarily, to a third party; (xiii) copy the Mobile App; (ix) use the Mobile App for any illegal, immoral or unauthorized purpose; (x) use the Mobile App, for non-personal or commercial purposes without Our express prior written consent; or (xi) infringe or violate any of the terms of this EULA.
YOUR CONTENT. Except as authorized by this EULA, You represent and warrant that You own all right, title, and interest in or are authorized to share all content, information, other materials, and data that You upload to the App or provide in electronic or hard copy formats that is maintained and/or processed by Us in connection with Your use of the Mobile App (collectively, “Content“). Except as otherwise provided in this EULA, You are responsible for the accuracy, content, completeness, and delivery of the Content provided by You, and warrant that the Content You provide is accurate and complete. By uploading Content, You hereby grant and will grant Us a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use the Content in connection with the operation of the Mobile App or the promotion, advertising, or marketing thereof, in any form, medium, or technology now known or
later developed. You agree that, in connection with Your use of the Mobile App, You are responsible for the direct consequences of any use of or access to the Content by Us as authorized by this EULA.
COMPLIANCE WITH LAWS. You represent and warrant to Us that Your use of the Mobile App will comply with all applicable laws and regulations, including data protection and privacy laws. You agree that You will not use the Mobile App in a way that is unlawful or that violates the rights of a third party.
CONNECTION CHARGES. The Internet connection required to use the Mobile App, and any associated charges (e.g. mobile data expenses) incurred by Your use of the Mobile App are Your exclusive responsibility and made solely at Your expense. Transmitting and receiving real-time updates to and from the Mobile App, requires an online (e.g. Wi-Fi, 3G, 4G, LTE) connection between Your mobile device and the Internet. The expenses of such connection are as prescribed by the agreement between You and Your communication service provider (such as Your cellular company), and according to its applicable terms of payment.
TERM & TERMINATION & SUSPENSION. This EULA shall remain in effect until the earlier of the termination of this EULA as set forth herein. We may terminate or suspend this EULA and Your license to use and access the Mobile App upon written notice (i) in the event You breach the terms of this EULA, or (b) in the event You violate any of Our Intellectual Property Rights (defined below). Upon termination or expiration of this EULA for any reason, Your licenses shall terminate and You shall cease access and use of the Mobile App. All provisions of the EULA which reasonably should survive termination will do so; by way of example but not of limitation, all obligations regarding confidentiality survive. Termination is not Our exclusive remedy and all other remedies will be available to Us. You agree that We may suspend access to the Mobile App without liability upon written notice to You if: (i) We reasonably believe that the Mobile App is being used in violation of this EULA; (ii) You don’t cooperate with Our reasonable investigation of any suspected violation of this EULA; (iii) there is an event for which We reasonably believe that the suspension of access to the Mobile App is necessary to protect the Our network or our other customers; or (iv) if required by law.
INDEMNIFICATION BY YOU. You shall indemnify, defend, and hold harmless Us, and Our respective officers, directors, stockholders, and employees, and any licensors or authorized affiliates, from and against all costs, liabilities, losses, expenses, and damages (whether direct or indirect) (including reasonable attorney’s fees and costs) arising out of or resulting from a third party claim or suit brought against Us relating to: (a) Your negligence or willful misconduct, (b) a breach by You of any of Your representations, warranties, or obligations hereunder, (c) Your breach of applicable law, (d) Your use or misuse of the Mobile App, or (e) any infringement or misappropriation of the Intellectual Property Rights of any third party regarding any of Your content.
UPDATES. You may receive updates, bug fixes, feature enhancements or improvements, or other data relating to the Mobile App (collectively “Updates“)
downloaded to Your mobile device with a notice describing what is included in the Update and the purpose of the Update. You will have to choose either (a) to install the Update on Your mobile device, or (b) opt out and not install the Update. If You choose not to install the Updates, certain functions and features of the Mobile App may not perform in accordance with Materials.
OUR INTELLECTUAL PROPERTY RIGHTS. Licensor owns or controls all rights, title, and interest in and to the Mobile App, including all Intellectual Property Rights associated therewith, on a worldwide basis, and has the right to license the Mobile App. Any trademarks owned or controlled by Us, whether or not included in the Mobile App, and any logos related to the foregoing are trademarks or service marks of Us and our Licensors (collectively, the “Marks“), each of which are the trademarks, service marks, or logos of their respective owners. Except as required for Your use of and access to the Mobile App and related services, You are not granted a right to use the Marks without the respective owner’s permission. You will not remove, obscure or alter any proprietary notices affixed to or contained within the Mobile App or related services. As used herein, “Intellectual Property Rights” shall mean all intangible legal rights or interests evidenced by or embodied in: (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis.
WARRANTIES; DISCLAIMER OF WARRANTIES. We warrant that (a) the Mobile App (and all components thereof) is either owned by Us or used under license if owned by third parties, (b) Your access to and use of the Mobile App are as contemplated in this EULA will not infringe any U.S. issued patent or trademark of any third party, and (c) the Mobile App shall comply with the Materials at all times.
TO THE EXTENT PERMITTED BY LAW, THE MOBILE APP AND THE MATERIALS ARE PROVIDED TO YOU ON AN “AS IS, WHERE-IS AND AS-AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND OR NATURE WHATSOEVER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN OR OTHER STATEMENT MADE BY US OR ANY AFFILIATE IS EFFECTIVE TO CREATE ANY WARRANTY OR OTHER LIABILITY OR OBLIGATION CONTRARY TO THIS DISCLAIMER. YOU EXPRESSLY AGREE THAT USE OF THE MOBILE APP AND THE MATERIALS IS AT YOUR SOLE RISK. TO THE EXTENT ALLOWED BY APPLICABLE LAW, WE HEREBY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY ASPECT OF THE MOBILE APP AND THE MATERIALS, INCLUDING, BUT NOT LIMITED TO, AS TO THE CONDITION, VALUE, QUALITIES, PROVISION, OPERATION, USE, RESULTS OR WORKMANSHIP THEREOF, OR THE ABSENCE OR CORRECTION OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY REPRESENTATIONS OR WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE MAKE NO WARRANTY OR REPRESENTATION THAT THE MOBILE APP AND THE MATERIALS, OR ANY ASPECT OF THE CONDITION, VALUE, QUALITIES, PROVISION, OPERATION, USE, RESULTS OR WORKMANSHIP THEREOF, WILL MEET YOUR REQUIREMENTS, OR WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR FREE, OR WILL BE ACCURATE OR COMPLETE.
LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN THIS EULA, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, LOSS PROFIT, COLLATERAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES INCURRED BY YOU, REGARDLESS OF HOW SUCH DAMAGES ARISE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, OUR LICENSORS DISCLAIM ANY DIRECT LIABILITY TO YOU TO THE MAXIMUM AMOUNT PERMITTED BY APPLICABLE LAW.
U.S. GOVERNMENT-RESTRICTED RIGHTS. The Mobile App and any accompanying documentation are each a “commercial item,” as that term is described in 48 C.F.R. 2.1.1 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the right to access the Mobile App and related services with only those rights set forth in this EULA.
EXPORT RESTRICTIONS. You may not download, distribute, export, re-export, or redistribute the Mobile App (a) into, or to a national or resident of any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of ‘Specially Designated’ nationals or the United States Commerce Department’s ‘Table of Deny Orders’. By downloading or using the Mobile App, You are representing and warranting that You shall not access or use the Mobile App in any such government list of persons or entities prohibited from receiving exports. Except pursuant to an express, written, fully-executed agreement with Us, You may not purchase a license to use the Mobile App for the purpose of exporting it to a country other than the original country of sale, nor may You retain the services of a third party to purchase a license to use the Mobile App if in doing so You will require such third party to send (via any means, electronic or otherwise) the Mobile App to You in a country other than the original country of sale.
ELECTRONIC EULA. This EULA may be agreed to and executed electronically. The parties consent to the use of electronic methods of acknowledgement and electronic signatures and agree that use of the Mobile App or an electronic signature relating to this EULA is the legal equivalent of a manual signature. The parties also agree that no certification authority or other third party verification is necessary to validate their electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of an electronic signature or any resulting agreement between the parties.
FORCE MAJEURE. Neither party shall have any liability for any failure to perform its obligations under this EULA if such failure is caused by fire, flood, natural disaster, epidemic, act of God, strike, civil unrest, riot, insurrection, revolution, war, terrorism, failure of utilities or telecommunications, law or governmental regulation or other cause or event which is of a magnitude or a type beyond the reasonable control of such party.
GENERAL. You may not assign, sell, delegate, sublicense or transfer this EULA or any of its rights, obligations, liabilities or duties hereunder, in whole or in part, to any third party (including any affiliated party) without Our prior written consent. Any purported attempts by either party to do so in violation of this section are void. There are no third-party beneficiaries to this EULA, meaning that this EULA shall not be for the benefit of or enforceable by any person or entity not a party hereto and shall not confer any rights or remedies upon any person or entity other than the parties and their respective successors and permitted assigns. The relationship of Us and You established by this EULA is that of independent contractors. This EULA shall be governed by the laws of the State of Hawaii, without reference to conflict of laws principles. Jurisdiction and venue for any dispute between You and Us regarding this EULA will be subject to the exclusive venue of the state and federal courts in the State of Hawaii. Neither the United Nations Convention on Contracts for the International Sale of Goods (“UN Convention”) and any legislation implementing such UN Convention, if otherwise applicable, nor Uniform Computer Information Transactions Act, will apply to this EULA. Except as expressly set forth herein to the extent permitted by applicable law, this EULA shall not prejudice the non-excludable, statutory rights of any party dealing as a consumer. This EULA is the entire agreement between You and Us and supersedes any other communications or advertisements with respect to the Mobile App and the Materials.
This EULA may not be modified except by a written instrument dated subsequent to the effective date of this EULA and accepted by the signature of duly authorized representatives of the parties. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this EULA. Section headings and titles are provided only for convenience and will not be used in interpreting the EULA. Except as otherwise expressly provided herein, all remedies available to either party for breach of this EULA are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. If any provision of this EULA is prohibited by law or held to be void or unenforceable, the remaining provisions hereof will not be affected, this EULA will continue in full force and effect as if such void or unenforceable provision had never constituted a part hereof, and the void or unenforceable provision will be automatically amended so as best to accomplish the original objectives of such provision within the limits of applicable law.