Important – Please Read Carefully Before Accessing or Using The Pom-Co Software Application (the “Licensed Application”). If You Are Unable To Agree With The Terms Of This Agreement, You Should Not Access or Use The Software.
This Software License Agreement (“Agreement”) is a legal agreement between you and POM-CO, INC. (“POM-CO”) for the Licensed Application. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY: (A) ACCESSING OR USING THE LICENSED APPLICATION; OR (B) BY CLICKING THE ACCEPTANCE MECHANISM ON THE ELECTRONIC VERSION OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT ACCESS OR USE THE LICENSED APPLICATION.
1. Ownership. The Licensed Application is licensed, not sold, to you for use only under the terms and conditions of this Agreement and POM-CO reserves all rights not expressly granted to you in this Agreement. It is an express condition of this Agreement that the rights, title, ownership, and all intellectual property and proprietary rights in and to the Licensed Application are retained by POM-CO.
2. RELEASE AND WAIVER OF LIABILITY. I AM AWARE THAT THE DEVICE AND THE SERVICES DO NOT ENSURE OR GUARANTEE ASSISTANCE IN THE EVENT OF AN EMERGENCY, AND THAT EMERGENCY RESPONSE IS EXPRESSLY SUBJECT TO FACTORS BEYOND THE CONTROL OF THE COMPANY AND THE SCHOOL THE COMPANY IS WORKING WITH. I know of the risks involved, and agree to assume any and all risks whether those risks are known or unknown. As consideration for being permitted by the Company and the School, to use the Device and the Services at the Site premises and facilities, I forever release and hold harmless the Company and the School, their affiliates, and their directors, officers, employees, volunteers, agents, contractors, and representatives (collectively “Releasees”) from any and all actions, claims, or demands that I, my assignees, heirs, distributees, guardians, next of kin, spouse and legal representatives now have, or may have in the future, for injury, death, or property damage, related to (i) my use of the Device and the Services, (ii) the negligence or other acts, whether directly connected to these activities or not, and however caused, by any Releasee, or (iii) the condition of the premises where the Services are used, whether or not I am then using the Services. I also agree that I, my assignees, heirs, distributees, guardians, next of kin, spouse and legal representatives will not make a claim against, sue, or attach the property of any Releasee in connection with any of the matters covered by the foregoing release.
3. Grant of License. Subject to your acceptance of the terms and conditions set forth in this Agreement, POM-CO grants to you a non-exclusive and non-transferable license, with no right to grant sublicenses, to use the Licensed Application. You may not rent or lease the Licensed Application. You agree that, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will: (i) decompile, disassemble, or reverse engineer the Licensed Application; (ii) modify or create derivative works of the Licensed Application; or (iii) transmit the Licensed Application or provide its functionality, in whole or in part, over the Internet or other network. You may not remove any proprietary notices or labels on or in the Licensed Application.
4. Consent to Use of Data. You agree that POM-CO may collect and use certain information that you provide to POM-CO through your use of the Licensed Application, which may include, without limitation, personal information, location data, and audio data, to improve its products or to provide services or technologies to you. POM-CO may also disclose such information to third parties in aggregated or de-identified format.
5. YOU AGREE AND UNDERSTAND THAT LICENSED APPLICATION AND HARDWARE DEVICE, THEIR FEATURES, FUNCTIONALITIES, AND RELATED APPLICATIONS ARE INTENDED TO BE USED FOR COMMUNICATION PURPOSES, AND POM-CO CANNOT ENSURE YOUR PERSONAL SAFETY AND DOES NOT WARRANT OR GUARANTY THE ADEQUACY OR PROMPTNESS OF RESPONSE, AVAILABILITY OF ASSISTANCE, OR THE PROPER FUNCTIONING OF THIRD PARTY SYSTEMS OR SYSTEMS OUTSIDE THE LICENSED APPLICATIONS.
6. Duration and Termination. This Agreement shall remain effective until terminated by you or POM-CO. This Agreement will terminate automatically if you fail to comply with the terms and conditions contained herein. Upon any termination of this Agreement, you agree to discontinue the use of the Licensed Application and remove or destroy all portions of the Licensed Application from your systems.
7. Confidentiality. You agree the Licensed Application is and contains the confidential information of POM-CO, including trade secrets such as, by way of non-limiting example, content, and internal architecture. You agree to use commercially reasonable efforts to keep such information confidential and not to publish, disclose, display, disseminate, provide, or otherwise make available in any form such confidential information, or any portion thereof, to any third party without the prior written consent of POM-CO.
8. POM-CO Data Services. POM-CO does not warrant that the services provided via the Licensed Application (“Services”) will meet your requirements, that the Services will operate in the combinations which you may select for use, nor that the use of the Services will be uninterrupted or error-free. You acknowledge that POM-CO’s services may be facilitated by applications and servers hosted by third parties and that POM-CO has no ability to ensure that such services are uninterrupted or error-free. The Licensed Application cannot eliminate the occurrence of security risks, and does not guarantee that such risks will be mitigated.
9. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ACCESS TO AND USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED “AS-IS” AND WITHOUT ANY EXPRESS, OR IMPLIED WARRANTIES OF ANY KIND. POM-CO AND ITS AGENTS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE LICENSED APPLICATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY OF NON-INFRINGEMENT, TITLE, SECURITY, OR QUIET ENJOYMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY POM-CO, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY.
10. Limitation of Liability. IN NO EVENT WILL POM-CO, ITS AFFILIATES, OR THEIR AGENTS BE LIABLE FOR PERSONAL INJURY OR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSED APPLICATION INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, TIME, OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL POM-CO ‘, ITS AFFILIATES’, AND THEIR AGENTS’ AGGREGATE LIABILITY EXCEED TEN U.S. DOLLARS (U.S.$10.00). THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF THE CLAIM (INCLUDING, WITHOUT LIMITATION, ANY CONTRACT, PRODUCT LIABILITY, OR TORT CLAIM). YOU MAY NOT ASSERT ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT AGAINST POM-CO MORE THAN TWELVE (12) MONTHS AFTER SUCH CLAIM INITIALLY ACCRUED. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTION 7 ABOVE AND THIS SECTION 8) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. Upgrades. POM-CO is under no obligation to provide any new versions, upgrades, bug fixes, enhancements, or modifications (collectively “Updates”) to the Licensed Application; provided, however, in the event POM-CO in its sole discretion elects to provide you with any Updates, the terms of this Agreement shall apply to the Updates, unless the Update is accompanied by a new license, in which case the new license will supersede this Agreement. Unless explicitly set forth in writing by POM-CO, any Updates provided by POM-CO shall not reset, extend, or provide any new warranties or warranty period relating to the Licensed Application.
12. Maintenance. POM-CO may, from time to time, in its sole discretion, install Updates, or perform maintenance (“Maintenance”) on the Licensed Application and/or Services. POM-CO shall use reasonable efforts to complete such Updates and Maintenance during the standard maintenance window(s) of the first day of each month between 3am and 7am (the “Maintenance Window”) so as to minimize any impact on Your use of the Licensed Application and/or Services. Notwithstanding the foregoing, You understand and acknowledge that certain Updates and Maintenance may be performed outside the Maintenance Window at POM-CO’s sole discretion, due to being, without limitation, time-critical or unable to be reasonable completed within the Maintenance Window. In such case, POM-CO will make reasonable efforts to provide You with notification prior to such Updates or Maintenance.
13. Indemnity. You will indemnify, defend, and hold POM-CO, its affiliates, and their members, managers, employees, and agents harmless from and against any and all damage, loss, expense, liability, threats, claims, suits, actions, judgments, decrees, and costs (including reasonable attorneys’ fees and disbursements) arising out of or relating to your breach of this Agreement or any other act or omission by you.
14. Export Restrictions. You agree to comply with all applicable international and national laws that apply to the Licensed Application, including the United States Export Administration Regulations and the International Traffic in Arms Regulations (ITAR), if applicable, as well as end-user, end-use, and destination restrictions issued by the United States and other governments.
15. Applicable Law and Venue. This Agreement is governed by the laws of the State of New York. You and POM-CO agree to submit to the personal and exclusive jurisdiction of the courts located in Saratoga County, New York.
16. Modifications. No change or modification of this Agreement will be valid unless it is made by POM-CO in writing.
17. Severability. The provisions of this Agreement are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
18. Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
19. Complete Agreement.This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether written or oral.