This End User License Agreement (“EULA Agreement”) is made between you (“User” or “you”) and Mobile Queue Technologies, Inc., (“Mobile Queue Technologies,” “we” or “us”) and governs your use of the edition and version of the QManager Access Software identified above (“Software”), and related services of our QManager Mobile Queue Application that may be accessed through use of the Software or otherwise. We may revise the Agreement in whole or in part at any time without prior notice, which will be applicable to you as of your first access, download or use of the Software or Application after the effective date of the revised Agreement.
The Software is a component of our QManager Mobile Queue Application (“Application”), which includes mobile queue scheduling and management services for schools and others (“Subscribers”) under their subscriptions with us (“Subscribed Services”). The Software enables users to access certain Subscribed Services of one or more Subscribers, if and as enabled by the individual Subscribers.
2.1. You have a personal, limited, non-transferable right and license during the term of a Subscriber’s subscription for Subscribed Services to (a) download and install the Software on a personal computer or mobile device, and (b) use the Software solely to access and use Subscribed Services of one or more Subscribers, if and as enabled by such Subscribers in accordance with their respective subscription agreements with us.
2.2. Your access and use of Subscribed Services of a Subscriber also are subject to policies and guidelines of individual Subscribers, to the extent not inconsistent with this Agreement and their respective subscription agreements with us. A Subscriber may suspend or terminate your access or use of its Subscribed Services at any time for any or no reason.
2.3. All rights not expressly granted to you under the Agreement are reserved by Mobile Queue Technologies.
3.1. You must keep current, accurate and complete all material information in your account registrations and other records stored by Subscriber or you in connection with the Application. You agree to review and update such information in a manner consistent with applicable policies and guidelines of the relevant Subscriber.
3.2. You also must keep all password information confidential, and may not allow others to use your account to access or use Subscribed Services. You also may not disclose, or allow others to use your account to access confidential, personal or sensitive information of or about a Subscriber, its staff, students or other Users, except with the full knowledge and express consent of the Subscriber or relevant User for itself and/or for individuals under its custody and care, as applicable or as expressly permitted by applicable policies and guidelines of the relevant Subscriber
3.3. The Application (including Software, Subscribed Services and other related Application software, services, website and content) are protected by intellectual property and other laws. Except for the limited subscription and license rights specifically granted to you under or pursuant to the Agreement, Mobile Queue Technologies retains all ownership, right, title and interest in and to the Application and related content, materials, software and services supporting or provided on, by or through the Application. Without limiting the generality of the previous sentence, you may not (a) disassemble, decompile or otherwise reverse engineer or otherwise attempt to reconstruct or discover any source code or underlying ideas, algorithms or databases used by or in the Application, (b) not distribute or otherwise provide any product, service, documentation, web page or similar item that in whole or in material part has the same or similar functionality or “look and feel” as the Application, Software or Subscribed Services, or (c) perform or disclose “benchmark” tests concerning the Application, Software or Subscribed Services or any portion thereof.
3.4. You agree to not attempt to disable, override or circumvent any security features of the Application or otherwise attempt to gain (or permit others to gain) unauthorized access to or use of any portion of the Application (including Subscriber Services or Software, or Subscriber or User information). You also agree to not (i) take any action that imposes an unreasonable load on the system infrastructure supporting the Application or interferes with the operation, delivery or performance of Subscriber Services; or (ii) copy, modify, create derivative works, distribute or publicly display any content or materials of Mobile Queue Technologies, Subscriber or other Users except as specifically permitted by the Agreement or with prior written permission of Mobile Queue Technologies, Subscriber or the other User, as appropriate.
3.5. You are solely responsible for your own conduct when accessing or using the Application, including the accuracy, completeness, quality and appropriateness of account information, personal information and other content provided by or for you in connection with the Application.
3.6. All rights not expressly granted to you under the Agreement are reserved by Mobile Queue Technologies.
4.2. You further acknowledge and agree that (a) Mobile Queue Technologies may transfer personal information between and among the United States and countries where servers hosting the Application are located, if outside the United States, and (b) Mobile Queue Technologies may disclose, in accordance with applicable laws and regulations, such Application usage information and personal information collected from or about on or stored by Subscribers and Users in connection with the Application as may be required or requested by the United States or other national governments and their respective instrumentalities, including federal, state and local courts, law enforcement and regulatory agencies.
5.1. FURTHER, YOUR ACCESS AND USE OF THE APPLICATION, INTERACTIONS WITH SUBSCRIBERS AND/OR OTHER USERS, AND YOUR USE OF ANY SOFTWARE, SUBSCRIBED SERVICES, INFORMATION OR OTHER CONTENT PROVIDED BY MOBILE QUEUE TECHNOLOGIES, SUBSCRIBER OR OTHER USERS IN CONNECTION WITH THE APPLICATION ARE ENTIRELY AT YOUR OWN RISK. MOBILE QUEUE TECHNOLOGIES AND ITS SUPPLIERS AND PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, REPRESENTATIVES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, ARE NOT LIABLE FOR ANY DELAYS, INACCURACIES, FAILURES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, VIRUSES, COMMUNICATION LINE FAILURES OR OTHER FAILURES OR ERRORS IN THE OPERATION OF THE APPLICATION, PROVISION OF SUBSCRIBED SERVICES, OR FOR THEFT, DESTRUCTION, DAMAGE OR UNAUTHORIZED ACCESS TO YOUR COMPUTER SYSTEM OR NETWORK IN CONNECTION WITH YOUR ACCESS OR USE OF THE APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT (I) THE APPLICATION (INCLUDING ALL SOFTWARE, INFORMATION AND OTHER CONTENT AVAILABLE FROM, THROUGH OR IN CONNECTION WITH THE APPLICATION) IS PROVIDED “AS IS” AND “WITH ALL FAULTS, AND (II) MOBILE QUEUE TECHNOLOGIES DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILTIY FOR THIRD PARTY SERVICES THAT THE APPLICATION MAY REQUIRE, SUCH AS INTERNET, WIRELESS ACCESS, CELLULAR PHONE, TEXT MESSAGING, GEOSPATIAL/GEOLOCATION AND OTHER SERVICES, OR FOR THIRD PARTY CONTENT AND OTHER SERVICES THAT MAY BE DISPLAYED OR ACCESSED THROUGH THE APPLICATION. TO THE GREATEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, MOBILE QUEUE TECHNOLOGIES DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE FOREGOING, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, MOBILE QUEUE TECHNOLOGIES DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION, OR INFORMATION OR OTHER CONTENT PROVIDED ON OR THROUGH THE APPLICATION OR IN CONNECTION WITH SUBSCRIBED SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
5.2. WITHOUT LIMITING THE GENERALITY OF THE PREVIOUS SUBSECTION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE APPLICATION (WHICH INCLUDES THE SOFTWARE AND SUBSCRIBED SERVICES) IS INTENDED SOLELY TO FACILITATE AND EXPEDITE QUEUE SCHEDULING, CHECK-IN AND CHECKOUT PROCESSES FOR THE CONVENIENCE OF SUBSCRIBERS AND USERS, AND SHOULD NOT BE USED TO REPLACE OR BE RELIED ON AS AN ESSENTIAL COMPONENT OF SUBSCRIBER’S SECURITY PROCESS AND/OR IDENTITY VERIFICATION PROCEDURES FOR MANAGED DROP-OFF OR PICKUP OF PERSONS OR DELIVERY OF VALUABLE OR IMPORTANT PRODUCTS. IF THE APPLICATION IS USED FOR SUCH PURPOSES, IT IS ENTIRELY AT SUBSCRIBER’S AND YOUR OWN RISK.
5.3. IN NO EVENT WILL MOBILE QUEUE TECHNOLOGIES OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO SUBSCRIBER OR ANY USER (INCLUDING WITHOUT LIMITATION, ANY STAFF, AGENT, VOLUNTEER OR PERSON UNDER THE CARE OR CUSTODY OF SUBSCRIBER OR A USER) OR OTHERS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, ECONOMIC OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, OPERATIONAL INTERRUPTION, LOSS OF INFORMATION) OR ANY SPECIAL, EXEMPLARY OR PUNITIVE DAMAGE ARISING FROM OR RELATING TO THE APPLICATION INCLUDING WITHOUT LIMITATION, YOUR ABILITY OR INABILITY TO ACCESS OR USE THE EXCHANGE OR PERFORM SUBSCRIBED services, ANY DELAYS, INACCURACIES, FAILURES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, VIRUSES, COMMUNICATION LINE FAILURES OR OTHER FAILURES OR ERRORS IN THE OPERATION OF THE APPLICATION, OR DAMAGES OR LOSSES CAUSED BY SUBSCRIBER OR USERS OR OTHERS IN CONNECTION WITH THEIR ACCESS OR USE OF THE APPLICATION OR OTHERWISE, EVEN IF MOBILE QUEUE TECHNOLOGIES IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. FURTHER, MOBILE QUEUE TECHNOLOGIES’ TOTAL CUMULATIVE LIABILITY TO SUBSCRIBER AND TO USERS, PERSONS UNDER THE CARE OR CUSTODY OF SUBSCRIBER OR USERS, AND ALL OTHERS ARISING FROM OR IN CONNECTION WITH THE APPLICATION WILL NOT EXCEED THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE TOTAL AMOUNT OF FEES THAT SUBSCRIBER HAS PAID TO MOBILE QUEUE TECHNOLOGIES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE APPLICABLE CLAIM FOR DAMAGES WAS MADE.
5.4. YOU AGREE THAT THE FOREGOING WARRANTY DISCLAIMER AND LIMITATION OF DAMAGES WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH EVENT, SOME OF THE ABOVE LIMITATIONS MIGHT NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Mobile Queue Technologies and its employees, directors, officers and agents against any against any allegations, investigations, demands, causes of action and other claims arising from a breach or alleged breach of your representations or obligations under this Agreement. Additionally, you will be primary responsible to pay promptly all damages, liabilities, judgments, costs and expenses (including attorneys’ fees and court costs) and other losses incurred by Mobile Queue Technologies or others in connection with your indemnification obligations described above.
7.1. The term of this Agreement will begin as of the date of your acceptance and will continue until the expiration or termination of your rights to Subscribed Services by all Subscribers that have enabled you to access their Subscribed Services, or expiration or termination of Subscribed Services of all such Subscribers. Upon expiration or termination of your rights to Subscribed Services of an individual Subscriber, you may no longer access, use or retain Subscriber or User information provided to you in connection with the Application for that Subscriber.
7.2. Mobile Queue Technologies may suspend or terminate your rights to Subscribed Services if you materially breach any representation or obligation under the Agreement, or if a Subscriber materially breaches any of its representations or obligations under its subscription agreement with us for such Subscribed Services.
7.3. Sections 3, 4, 5, 6 and 8 shall survive the expiration or termination of this Agreement.
8.1. You acknowledge and agree the Agreement is governed and construed solely in accordance with the laws of the State of Washington without regard to its conflicts of law provisions. You also agree and consent to the exclusive jurisdiction and venue of any federal or state court located in King County in the State of Washington for all disputes arising out of or in connection with the Application or the Agreement. Upon the written request of Mobile Queue Technologies, you agree to engage in good faith discussions at senior executive level to attempt to settle the dispute.
8.2. All notices and other communications under the Agreement must be in writing (which may be in physical or electronic form) and shall be sent to the address indicated on Mobile Queue Technologies’ website for legal communications or to you at an address associated with your account registration or the device on which the Software is installed, or posted to a location of the Application regularly used for communication with Subscriber or Users. Notices and communications sent to such address or location will be deemed given as of the earliest of (a) the date of actual receipt or the date delivery was confirmed by physical or electronic means, or (b) one (1) business day after sending if given by facsimile, email or similar electronic means, (c) five (5) business days after sending if given by domestic mail or if posted in a location of the Application regularly used for communication with Subscriber or Users, or (d) ten (10) business days if given by international mail.
8.3. The Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Nothing in the Agreement creates any third party beneficiary rights.
8.4. You may not assign to any other person or entity any of your rights or obligations relating to the Application or under the Agreement, directly or indirectly (by operation of law or otherwise), without the prior written consent of Mobile Queue Technologies. Any attempted assignment without such consent shall be void and of no effect.
8.5. You and we are independent contractors. Nothing in this Agreement is intended or will be deemed to constitute a partnership, agency, franchise or joint venture relationship between Mobile Queue Technologies and you.
8.6. We are not responsible for delay or failure in performance resulting from acts beyond our control, which include, but are not limited to, an act of God, war, epidemic, fire, flood or other disaster, government action, or a strike or lockout.
8.7. You acknowledge and agree that if you become a debtor or debtor-in-possession under Title 11 of the United States Code (the “Bankruptcy Code”), the Agreement only provides for a non-exclusive license or subscription for intellectual property rights which are not subject to assumption and/or assignment pursuant to section 365(c) of the Bankruptcy Code.