Fountainhead Mobile Solutions End User License Agreement

Last modified: April, 25, 2024

Fountainhead Mobile Solutions, LLC ("FMS") offers you ("Licensee") a license to use the Product (as defined in Section 1) only upon the condition that you accept all of the terms contained in this End User License Agreement (the "Agreement") by downloading, installing or using this Product. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity.  FMS may amend the terms of this Agreement from time to time. Amendments will be effective upon FMS’s posting of such updated terms at this location. You should regularly review these Terms, as your continued use of the Services after any such changes constitutes your agreement to such changes. Your use of the Product, even if obtained in contravention of this Agreement, indicates your agreement to these terms. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE PRODUCT AND REMOVE IT FROM YOUR DEVICE.

TERMS AND CONDITIONS

  1. Definitions
  1. "Host Device" means a single computer, such as a computer, smartphone, or other device.
  2. "Personal Use" means your use of the Product on the Host Device where you have installed the Product.
  3. "Product" means the binary software packages you download, install, or use. The Product includes all documentation and updates provided to you by FMS under this Agreement and the terms of this Agreement will apply to all such documentation and updates unless a different license is provided with an update or documentation.

  1. License.
  1. Internal Use License. Subject to your payment of any applicable license fees, FMS grants you a non-exclusive, non-transferable, specific duration (limited by the applicable purchase agreement) license to install, execute, reproduce, and use internally the Product on a Host Device solely for your Personal Use.
  2. In the event of a claim of rights to the Product by a third party, FMS shall be allowed to provide updates to the Product. You are then obliged to install such updates.
  3. All applicable intellectual property rights, including copyrights, trade secrets, patents, and trademarks in the Product and user manual, or any modifications or enhancements thereto, shall remain with FMS.
  4. This Agreement applies to updates, supplements, add-on components, or Internet-based services components of the Product that FMS may provide to you or make available to you after the date you obtain your initial copy of the Product unless FMS provides other terms along with the update, supplement, add-on component, or Internet-based services component.
  5. Maintenance and support for the Product are not provided under this license but may be available separately from FMS or its authorized distributors.

  1. Restrictions and Reservation of Rights
  1. Any use beyond the provisions of Section 2 is prohibited. The Product and copies thereof provided to you under this Agreement are copyrighted and licensed by FMS. FMS reserves all copyrights and other intellectual property rights. This includes, but is not limited to, the right to modify, make available or public, rent out, lease, lend, or otherwise distribute the Product. This does not apply as far as applicable law may require otherwise or if FMS grants you additional rights of use in a separate agreement in writing.
  2. You may not do any of the following:
  1. modify the Product;
  2. rent, lease, lend, or encumber the Product;
  3. remove or alter any proprietary legends or notices contained in the Product; or
  4. decompile, or reverse engineer the Product (unless enforcement of this restriction is prohibited by applicable law).
  1. No right, title, or interest in or to any trademark, service mark, logo, or trade name of FMS or its licensors is granted under this Agreement.
  2. FMS reserves all rights not granted to you in this Agreement.

  1. Consent to Use of Data

You hereby consent to FMS's collection and use of technical data and related information, which may include, but is not limited to, technical information concerning your device, system and application software, and peripherals. This information shall be collected periodically to aid in the delivery of software updates, product support, and other services related to the Product, as applicable. FMS may utilize this data to enhance its products or to deliver services or technologies to you provided that it is in a form that does not identify you.

  1. Term and Termination
  1. The Agreement is effective on the date you receive the Product and remains effective until terminated.
  2. You may terminate this license immediately by uninstalling and destroying all copies of the Software in your possession.
  3. This license will terminate automatically, without notice from FMS, immediately (i) upon the breach of any terms of this license, or (ii) in the event you file for bankruptcy protection, are declared bankrupt in any jurisdiction, or have a receiver appointed, and such filing, declaration, or appointment is not rescinded within ninety (90) days.
  4. FMS may terminate this Agreement should any Product become, or in FMS's opinion is likely to become the subject of a claim of intellectual property infringement or trade secret misappropriation. Upon termination, you will cease use of and destroy the Product and confirm compliance in writing to FMS.
  5. Sections 3-11, inclusive, will survive termination or expiration of the Agreement.

  1. Limitation of Liability. In no event shall FMS or its suppliers have any liability for consequential, exemplary, special, indirect, incidental, or punitive damages, including, but not limited to, any lost profit or lost savings (whether resulting from impaired or lost data, software or computer failure, support failure, or any other cause), even if it has been advised of the possibilities of such damages. In no event will FMS's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the lesser of (i) $50 US; or (ii) the amount paid by you for Product under this Agreement.

  1. Representations and Disclaimer of Warranty
  1. Except as set forth in this Agreement, the Product is provided to you without any warranties, including, but not limited to, warranties concerning the installation, use, or performance of the Product.
  2. FMS DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
  3. FMS does not warrant that the Product will meet your requirements or that the operation thereof will be interrupted or error-free, or that all errors will be corrected.

  1. Third Party Code.  Portions of Product may be provided with notices and open source licenses from communities and third parties that govern the use of those portions, and any licenses granted hereunder do not alter any rights and obligations you may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all the Product.  For the avoidance of doubt, by accepting the terms of this Agreement, you are accepting the terms of the open source license agreements, if any, for the Product.

  1. Miscellaneous
  1. This Agreement is the entire agreement between you and FMS relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement.
  2. No modification by you of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
  3. This Agreement may not be assigned (including performance by subcontract) by any party hereto.  Any purported assignment in violation of this clause is void.
  4. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
  5. Course of dealing and other standard business conditions of the parties or the industry shall not apply.
  6. This is not a third party beneficiary contract.  No person or entity other than a party to this Agreement shall have any rights under this Agreement.

  1. Dispute Resolution
  1. Governing Law.  This Agreement shall be subject to, and interpreted by and in accordance with, the laws (excluding conflict of law provisions) of the State of Washington. The parties expressly waive application of the United Nations Convention on Contracts for the International Sale of Goods (CIGS) is not applicable.
  2. Venue. Any cause of action for a breach or enforcement of, or a declaratory judgment respecting, this Agreement shall be commenced and maintained only in the state and federal courts in King County, Washington.
  3. Export Regulations. You agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. You warrant that you are not located in a country subject to a U.S. Government embargo, designated as a “terrorist supporting country”, or on a US Government list of prohibited or restricted parties;
  4. Injunction.  You agree that your breach of any provision of this license will cause FMS irreparable injury that is inadequately compensable in monetary damages and, accordingly, that FMS shall be entitled to injunctive relief in any court of competent jurisdiction against the breach or threatened breach of this license, in addition to any other remedies in law or equity.
  5. Attorney Fees.  In any action brought by a party hereto to enforce the obligations of any other party hereto, the prevailing party shall be entitled to collect from the opposing party to such action such party's reasonable litigation costs and attorneys fees and expenses (including court costs, reasonable fees of accountants and experts, and other expenses incidental to the litigation).
  6. Waiver. The waiver or failure of FMS to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder and no waiver shall be effective unless in writing.

  1. Severability.  In the event any provision of this Agreement, or the application of such provision to any person or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent for any reason, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected and shall continue to be enforceable to the fullest extent permitted by law.