THIS MOBILE APPLICATION LICENSE AGREEMENT (“AGREEMENT”) GOVERNS THE LICENSING, INSTALLATION AND USE OF THE GREYMATTER MOBILE SOFTWARE APPLICATION (“GREYMATTER MOBILE”) PROVIDED BY RELIAQUEST. BY DOWNLOADING, INSTALLING, ACCESSING OR USING GREYMATTER MOBILE, YOU ARE INDICATING THAT YOU (A) HAVE READ THIS AGREEMENT AND UNDERSTAND THAT IT IS LEGALLY BINDING, (B) AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT ON BEHALF OF THE EMPLOYER OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACTING OR, IF YOU ARE NOT ACTING FOR AN EMPLOYER OR OTHER LEGAL ENTITY, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, AND (C) YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH EMPLOYER OR OTHER LEGAL ENTITY, IF ANY. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE GREYMATTER MOBILE AND DELETE IT FROM YOUR MOBILE DEVICE.
As used in this Agreement, “ReliaQuest” refers to ReliaQuest, LLC, a Florida limited liability company, with its principal place of business at 1001 Water Street, Suite 1900, Tampa, Florida 33602, United States of America; and “you” (or a derivative term) refers to you as an individual and, as applicable, the employer or other legal entity on whose behalf you have entered into this Agreement.
1. GreyMatter Mobile.
a. License Grant. Subject to this Agreement, ReliaQuest hereby grants to you, under ReliaQuest’s applicable Intellectual Property Rights, a limited, non-exclusive, non-transferable, non-sublicensable license to download, install, access and use GreyMatter Mobile on an authorized Apple or Android mobile device owned or otherwise controlled by you, solely for your Internal Use, and in conjunction with the in-scope components of the ReliaQuest Platform, as specifically identified in an applicable Order between you and ReliaQuest.
b. Acceptable Use. Unless otherwise expressly permitted by ReliaQuest in this Agreement, you shall not: (i) copy any portion of GreyMatter Mobile (except as required to run GreyMatter Mobile); (ii) alter, publicly display, translate, modify, adapt, or create any derivative works of GreyMatter Mobile; (iii) rent, lease, loan, resell, transfer, sublicense, distribute, or otherwise provide access to GreyMatter Mobile to any third party; (iv) disassemble, decompile, or reverse-engineer any part of GreyMatter Mobile, or attempt to gain access to any source code, algorithms, methods, or techniques embodied in GreyMatter Mobile, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (v) access or use any Disabled Functionality or transmit any Excluded Data to ReliaQuest; (vi) conduct any penetration testing or vulnerability assessments on any part of GreyMatter Mobile; (vii) attempt to disable or circumvent any technological mechanisms intended to prevent, limit, or control use, copying of, or access to, any part of GreyMatter Mobile or any Disabled Functionality; (viii) remove or alter any notice of proprietary right appearing on GreyMatter Mobile; (ix) separately use any of the applicable features and functionalities of GreyMatter Mobile with external applications or code not furnished by ReliaQuest, except as otherwise specifically permitted by ReliaQuest in writing; (x) use GreyMatter Mobile for any illegal, harmful, or fraudulent purposes; or (xi) encourage or assist any third party to do any of the foregoing. You shall notify ReliaQuest immediately if you learn of any unauthorized access or use of your user accounts or passwords for GreyMatter Mobile. You agree to use GreyMatter Mobile in accordance with laws, rules, and regulations applicable to you and acknowledges that you are solely responsible for determining whether a particular use of GreyMatter Mobile is compliant with such laws.
c. Ownership of GreyMatter Mobile. ReliaQuest retains exclusive ownership to GreyMatter Mobile, its components and outputs (including Service Metrics), and all elements, methodologies, techniques, mechanisms, and visualizations used to create, generate, and display GreyMatter Mobile, and all Intellectual Property Rights therein or related thereto, including in any ideas, concepts, know how, documentation, or techniques developed or learned by ReliaQuest during its provision of GreyMatter Mobile. All rights not expressly granted to you are reserved by ReliaQuest, and there are no implied licenses herein. GreyMatter Mobile and its components are licensed for your Internal Use, consistent with the acceptable use terms in Section 1.b of this Agreement, and they are not sold to you. You acknowledge and agree that, upon termination or expiration of an applicable Order, you shall lose access to the corresponding components of GreyMatter Mobile.
d. Feedback. Feedback, if any, provided by you is done so voluntarily, and ReliaQuest places no obligation on you to provide Feedback. ReliaQuest acknowledges and agrees that all Feedback is provided ‘As-Is’ with no representations or warranties. To the extent you choose to provide Feedback to ReliaQuest, ReliaQuest may freely use such Feedback (including Intellectual Property Rights) without restriction.
2. Your Systems and Data.
a. System and Data Use and Access. You have the authority to grant, and you hereby grant, ReliaQuest access to your systems, software, Customer Operational Data, and other materials or resources (including access via site-to-site VPN and/or Internet access) necessary for ReliaQuest to provide GreyMatter Mobile. You shall limit the access provided to ReliaQuest solely to the access necessary to provide GreyMatter Mobile and shall not provide access to any other data on your systems that are not required for ReliaQuest to provide GreyMatter Mobile. You will not provide access to or transmit to ReliaQuest (via Customer Data or otherwise) any personally identifiable information, personal data, or other personal information that is subject to data privacy or security laws or regulations (“PII”). In the event you inadvertently disclose any such PII to ReliaQuest, (i) you and ReliaQuest shall work together in good faith to prevent, limit, or mitigate further disclosure of such information to ReliaQuest, and (ii) you represent and warrant that you (1) have complied with any applicable laws relating to your possession of such PII; and (2) possess all consents, authorizations, rights, and authority to hold and disclose such PII to ReliaQuest, and provided all notices to individual data subjects, as are or may be required or reasonably expected to enable the transfer of any such information to ReliaQuest.
b. Customer Obligations. You are responsible for (i) the accuracy, quality, integrity, legality, reliability, and appropriateness of any and all Customer Data used or transferred in connection with GreyMatter Mobile; (ii) selecting from the security configurations and making other relevant security related decisions in connection with implementation and your usage of GreyMatter Mobile; (iii) taking or implementing any additional measures outside GreyMatter Mobile in your environment to the extent GreyMatter Mobile does not provide the controls required or desired by you; (iv) implementing appropriate technical and organizational measures outside of what is provided by ReliaQuest to ensure the security of Customer Data on your systems and networks; and (v) providing for the routine archiving, storage, and back-up of Customer Data. GreyMatter Mobile does not include any data back-up services, and ReliaQuest will not be responsible for loss or alteration of any Customer Data.
d. Service Metrics. ReliaQuest shall be entitled to collect, compile, analyze and otherwise use statistical data related to you and/or aggregate data related to you (“Service Metrics”), provided that such Service Metrics: (i) are anonymized so that your identity is not ascertainable when used by ReliaQuest; (ii) do not identify any particular natural person; (iii) do not identify, by network Internet Protocol address, raw hardware serial number, or raw MAC address, a particular device or computer associated with or used by a particular natural person; and (iv) are not reasonably linkable to a particular natural person. ReliaQuest collects Service Metrics for a variety of reasons, such as to provide enhanced reporting to other customers, to identify, understand, and anticipate performance issues and factors that affect them, to provide updates and personalized experiences to customers, and to improve GreyMatter Mobile. No compensation will be paid by ReliaQuest with respect to its use of the Service Metrics.
3. Disclaimer of Warranty.
GREYMATTER MOBILE IS PROVIDED “AS-IS.” EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, RELIAQUEST MAKES NO AND EXPRESSLY DISCLAIMS ALL EXPRESS (WRITTEN OR ORAL), IMPLIED, OR STATUTORY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO GREYMATTER MOBILE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, WORKMANLIKE OR SUITABLE QUALITY, INTEGRATION, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY OTHER WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTIES REGARDING THE AVAILABILITY, SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF GREYMATTER MOBILE. ANY EXPRESS (WRITTEN OR ORAL), IMPLIED OR STATUTORY REPRESENTATIONS AND WARRANTIES THAT ARE NOT FULLY DISCLAIMED OR EXCLUDED ARE LIMITED TO THE SOLE AND EXCLUSIVE REMEDIES SPECIFIED IN THIS AGREEMENT. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT RELIAQUEST DOES NOT GUARANTEE OR WARRANT THAT IT, OR GREYMATTER MOBILE (OR ITS COMPONENTS), WILL FIND, LOCATE, OR DISCOVER ANY OR ALL OF
YOUR SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS CODE, AND YOU WILL NOT HOLD RELIAQUEST RESPONSIBLE FOR FAILURE TO DETECT SUCH ITEMS. NO WARRANTY IS MADE THAT GREYMATTER MOBILE WILL MEET YOUR NEEDS OR BE ERROR FREE OR UNINTERRUPTED. RELIAQUEST MAKES NO WARRANTIES REGARDING THE ACCURACY OF GREYMATTER MOBILE OR THE APPROPRIATENESS OF ANY SUCH ITEMS FOR ANY PARTICULAR SYSTEM. YOU DOWNLOAD, INSTALL, ACCESS AND USE GREYMATTER MOBILE AT YOUR OWN DISCRETION AND RISK AND ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE (INCLUDING MOBILE DEVICES) OR LOSS OF DATA THAT RESULT FROM YOUR DOWNLOAD, INSTALLTION, ACCESS OR USE OF GREYMATTER MOBILE.
You agree to indemnify, defend, and hold harmless ReliaQuest and its Affiliates 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 attorneys’ fees and legal costs, arising from or relating to your use or misuse of GreyMatter Mobile or your breach of this Agreement. ReliaQuest reserves the right, at its own expense, to assume exclusive defense and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.
5. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RELIAQUEST (INCLUDING ITS THIRD PARTY SUPPLIERS) SHALL NOT BE LIABLE TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COST OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE. RELIAQUEST’S (AND ITS THIRD PARTY SUPPLIERS’) TOTAL LIABILITY TO YOU, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, IN THE AGGREGATE SHALL NOT EXCEED THE GREATER OF (A) THE PRICE PAID FOR GREYMATTER MOBILE ONLY AND (B) FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT AND REGARDLESS OF WHETHER RELIAQUEST HAS BEEN ADVISED OF THE POSSIBILITY OF ANY APPLICABLE DAMAGES. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11. RELIAQUEST SHALL HAVE NO OBLIGATION FOR ANY CLAIMS, DAMAGES, LIABILITIES, COSTS, OR BREACH OF THIS AGREEMENT TO THE EXTENT YOU FAIL TO: (1) EXERCISE REASONABLE CARE; (2) COMPLY WITH YOUR OBLIGATIONS UNDER THIS AGREEMENT; OR (3) FOLLOW THE INSTRUCTIONS OR RECOMMENDATIONS OF RELIAQUEST, IN CONNECTION WITH SUCH CLAIM. THIS AGREEMENT EXPRESSLY EXCLUDES LIABILITY TO YOUR AFFILIATES, SERVICE PROVIDERS, CUSTOMERS, AND OTHER THIRD PARTIES RELATED OR CONNECTED TO YOU. YOU WILL NOT BRING A LEGAL ACTION AGAINST RELIAQUEST MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION AROSE UNLESS APPLICABLE LAW PROHIBITS THIS CONTRACTUAL LIMITATION.
6. Compliance with Laws; Geographic Limitations.
You agree to comply with all applicable U.S. federal, state, local, and non-U.S. laws directly applicable to you in the performance of this Agreement or use of GreyMatter Mobile, including applicable export and import, anti-corruption, and employment laws. You acknowledge and agree GreyMatter Mobile shall not be used, transferred, or otherwise exported or re-exported to jurisdictions against which the United States and/or the European Union maintains an embargo or comprehensive sanctions (each, an “Embargoed Country”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., persons or entities listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (each, a “Designated National”), without first obtaining all required authorizations from the U.S. government and any other applicable government. You represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You acknowledge that you may not be able to access or use all or some of GreyMatter Mobile in certain jurisdictions or geographic areas, including in any Embargoed Countries, and that access or use of all or some of GreyMatter Mobile may not be permitted by certain persons, including any Designated Nationals. If you access or use GreyMatter Mobile outside the United States of America, you are responsible for your compliance with all local laws and regulations applicable outside the United States of America.
7. Term and Termination.
a. Term. This Agreement is effective until terminated by you or ReliaQuest. You may terminate this Agreement by ceasing all use of GreyMatter Mobile and deleting GreyMatter Mobile and all copies from your mobile device. ReliaQuest may terminate this Agreement at any time, without notice, and in its sole discretion.
b. Effect of Termination. Your rights under this Agreement will terminate automatically, without notice from ReliaQuest, if (i) you do not comply with the terms of this Agreement or (ii) your applicable subscription or Order expires or is terminated. Upon termination of this Agreement, you must cease all use of GreyMatter Mobile and delete GreyMatter Mobile and all copies from your mobile device.
c. Survival. In addition to any other right or obligation that by its nature is intended to survive any termination or expiration, the following Sections shall survive any termination or expiration of this Agreement: (i) Section 1 (GreyMatter Mobile); (ii) Section 2.d (Service Metrics); (iv) Section 3 (Disclaimer of Warranty); (v) Section 4 (Indemnification); (vi) Section 5 (Limitation of Liability); (vii) Section 7 (Term and Termination); (viii) Section 8 (General); and (ix) Section 9 (Definitions).
d. Suspension. ReliaQuest may suspend your access to or use of GreyMatter Mobile, in its sole discretion and without prior notice, if ReliaQuest believes (i) a significant threat to the security, integrity, functionality, or availability of GreyMatter Mobile or any components, content, data, or applications in GreyMatter mobile exists or (ii) you do not comply with the terms of this Agreement or any other agreement with ReliaQuest.
a. Force Majeure. ReliaQuest shall not be liable for or considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including acts of God, nature or a public enemy, acts of any military, civil or regulatory entity, terrorism or other third party criminal actions, change in any law or regulation, fire, flood, earthquake, pandemic, global health emergency, epidemic, quarantine restrictions and/or actual or anticipated public health crisis, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing.
b. Assignment. You may not delegate or assign this Agreement, in whole or in part, by agreement, operation of law, or otherwise, without ReliaQuest’s prior written consent. Any such assignment in violation of this Section 8.b shall be void. Subject to the foregoing, all rights and obligations of ReliaQuest and you under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against applicable successors and assigns.
c. Governing Law; Venue. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Delaware, excluding its choice of law provisions. You consent and submit to the jurisdiction and forum of the state and federal courts in the State of Delaware for all questions and controversies arising out of this Agreement and waive all objections to venue and personal jurisdiction in these forums for such disputes. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement or the transactions contemplated hereunder.
d. Entire Agreement. This Agreement forms the entire agreement between ReliaQuest and you regarding GreyMatter Mobile and supersedes and replaces any previous or contemporaneous communications, representations, or agreements, or your additional or inconsistent terms, whether oral or written, with respect to GreyMatter Mobile.
e. Enforceability of Limitations. THE TERMS OF THIS AGREEMENT THAT LIMIT, DISCLAIM, OR EXCLUDE WARRANTIES, REMEDIES, OR DAMAGES ARE INTENDED BY THE PARTIES TO BE INDEPENDENT AND REMAIN IN EFFECT DESPITE THE FAILURE OR UNENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT. THE PARTIES HAVE RELIED ON THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS AGREEMENT IN DETERMINING WHETHER TO ENTER INTO IT.
f. Waiver and Severability. Neither party’s failure to exercise or delay in exercising any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
g. Amendment. ReliaQuest may change the terms and conditions of this Agreement from time to time. Unless ReliaQuest indicates otherwise, any changes will be effective as of the date ReliaQuest posts an updated version of this Agreement on its website or in GreyMatter Mobile. In the event of any substantive or material changes, ReliaQuest may communicate such changes to you by electronic communication, including by posting the updated Agreement on its website or in GreyMatter Mobile. You should therefore review this Agreement regularly. Your continued use of, or access to, GreyMatter Mobile following a change to the Agreement constitutes your agreement to follow and be bound by the updated Agreement.
h. Interpretation. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
i. Relationship of the Parties; No Third-Party Rights. Each party is an independent contractor in the performance of this Agreement. Neither party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other, unless explicitly provided otherwise in this Agreement. Except as provided in Section 8.l, no provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
j. Notices. ReliaQuest may provide you with notices, including notifications generated in connection with GreyMatter Mobile, such as service announcements and notices regarding changes to this Agreement, which may be provided by email, text message, SMS, MMS, push notification or in-app message, or other electronic means. You consent to receive the foregoing notices, except to the extent you have not opted-in or have opted-out of specific forms of the foregoing notices. All legal notices will be given in writing and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five (5) business days after being sent by registered or certified mail (or ten days for international mail).
k. Government Licensing Terms. Reserved.
l. Apple Minimum License Terms. To the extent that you download, install and use GreyMatter Mobile on an authorized Apple mobile device, the following additional terms apply:
i. This Agreement is between ReliaQuest and you, and not with Apple. ReliaQuest, not Apple, is solely responsible for GreyMatter Mobile. This Agreement is not intended to provide for usage rules for GreyMatter Mobile that are less restrictive than or otherwise conflict with the “Usage Rules” in the latest iteration of the Apple Media Services Terms and Conditions, as the same may be amended or superseded from time to time (“AMS Terms”). You acknowledge you have had the opportunity to review the AMS Terms.
ii. In addition to the other limitations in this Agreement, the license granted to you in Section 1 of this Agreement is limited to your use of GreyMatter Mobile on any Apple-branded mobile devices that you own or control and as permitted by and in accordance with the Usage Rules in the AMS Terms.
iii. Apple has no obligation whatsoever to provide any maintenance or support for GreyMatter Mobile. In the event GreyMatter Mobile fails to comply with an applicable warranty (to the extent not disclaimed in accordance with Section 3), you may notify Apple, and Apple will refund to you the purchase price for GreyMatter Mobile. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to GreyMatter Mobile or for any other claims, losses, liabilities, damages, costs or expenses relating to your use of GreyMatter Mobile. Apple has no responsibility for addressing any claims relating to GreyMatter Mobile or your use of GreyMatter Mobile, including (1) product liability claims; (2) any claim that GreyMatter Mobile fails to conform to any applicable legal or regulatory requirement; and (3) any claims arising under consumer protection, privacy or similar legislation.
iv. In the event of any third party claim that GreyMatter Mobile or you use of GreyMatter Mobile infringes that third party’s Intellectual Property Rights, ReliaQuest, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
v. To the extent that any third-party terms are applicable to GreyMatter Mobile, you must comply with such third-party terms in connection with your download, installation, access and use of GreyMatter Mobile. ReliaQuest and you acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary hereof.
vi. ReliaQuest, LLC, is a Florida limited liability company, with its principal place of business at 1001 Water Street, Suite 1900, Tampa, Florida 33602, United States of America. Questions regarding GreyMatter Mobile may be submitted via phone or electronic mail to the customer success manager assigned to your account. Any legal complaints or claims regarding this Agreement shall be directed to [email protected], in addition to the procedure set forth in Section 8.j.
Unless otherwise indicated in this Agreement, capitalized terms shall have the meanings assigned to such terms in ReliaQuest’s Platform and Support Agreement, available at GreyMatter PSA.