DVI SUITE EULA

 

This End User License Agreement (“EULA” or “Agreement”) is a legal contract between Constellation R.O. Writer Inc. (“R.O. Writer” and/or “Licensor”) and you as an individual or an entity (“You,” “Your”, or “End User”).  This EULA is for R.O. Writer’s suite of software applications that comprise the R.O. Writer DVI Suite (which includes products formerly known as SmartStatus, R.O. Touch) and any associated software (“Software” or “Licensed Software”).  It also covers any user documentation, whether provided online, in an electronic format or otherwise, You may have purchased, downloaded or subscribed to for the Licensed Software (collectively “Documentation”).  R.O. Writer is a Delaware corporation with its principal office at 11350 McCormick Road, EP3, Suite 200, Hunt Valley, MD 21031. For purposes of this Agreement, Documentation, Software and/or Licensed Software, and the operations and support thereof, as well as any related services that are provided in connection with the Licensed Software (including any third-party services) is collectively the “Services.”

BY INSTALLING THE SOFTWARE OR SELECTING “I ACCEPT” DURING INSTALLATION, YOU ARE EXPLICITLY ACKNOWLEDGING AND AGREEING THAT: (1) THIS IS A BINDING CONTRACT, (2) YOUR USE OF THE SOFTWARE AND THE SERVICES WILL COMPLY WITH AND BE SUBJECT TO AND GOVERNED BY THIS EULA, THE R.O. WRITER PRIVACY POLICY (LOCATED AT HTTPS://WWW.INFO.ROWRITER.COM/PRIVACYPOLICY), AND THE TWILIO ACCEPTABLE USE POLICY (LOCATED AT HTTPS://WWW.TWILIO.COM/LEGAL/AUP) AND MESSAGING POLICY LOCATED AT (HTTPS://WWW.TWILIO.COM/LEGAL/MESSAGING-POLICY), AND (3) YOU HAVE READ AND AGREE TO THE TERMS OF THIS EULA AND ANY OTHER TERMS INCORPORATED HEREIN BY REFERENCE.  IF YOU DO NOT ACCEPT THE FOREGOING TERMS, THEN DO NOT INSTALL THE SOFTWARE OR USE THE SERVICES AND CONTACT YOUR R.O. WRITER REPRESENTATIVE.

R.O. Writer may update this Agreement at any time, and will make the updated Agreement available by posting the updated version on its website at https://info.rowriter.com/eula-dvi-suite, which You should regularly check for updates and/or changes.  R.O. Writer will use reasonable efforts to inform you of any such updates.  However, your continued use of the Software and the Services shall be conclusive evidence that You have read and consented to this Agreement as amended or modified and further agree on a going forward basis to comply with, and be bound by, all the terms and conditions contained in the Agreement as amended or modified at that time.  If at any point You do not agree to any portion of the EULA then in effect, You must immediately stop using the Software and Services.

 

1.0     License Grant; Subscription; Your Responsibilities.

 

1.1  DVI Suite: Subject to the terms and conditions contained in this EULA, Licensor grants to End User a non-exclusive, non-sub-licensable, non-transferable, revocable, and limited license to download, install, and operate the Software, its associated components, documentation, and any updates, upgrades, and number of Software installations onto End User’s device(s) permitted by the Service End User purchased per its sales order for the term of this Agreement and/or the term listed on the work/sales order, whichever is less.  The right to use said Software also includes the right to use and distribute internally Licensor’s Documentation.

 

1.1.1            Although employees or agents of Licensor may assist you in the installation of the Software, You acknowledge and agree that (1) Licensor is not providing legal advice or providing you guidance on any tax or other legal requirements, (2) Licensor is not responsible for settings in the Software, (3) Licensor is expressly advising you to seek legal counsel to determine the proper settings and use of the Software fields and related Services relating to any legal requirements, including but not limited to taxes, service fees, consents, and invoice creation, and (4) You agree to waive and release Licensor and its affiliates, subsidiaries, parents, and related entities and it and their successors, employees, and agents from any and all liabilities and/or damages related to any improper settings.

 

1.2     Texting Service Subscription: Subject to the terms and conditions of this Agreement, Licensor hereby grants End User a limited, non-exclusive, non-sub-licensable, non-transferable, revocable, and limited right to send and receive messages via the Software (the “Texting Services,” which are part of the Services for purposes of this EULA) for the limited purpose of communicating with End User customers in connection with End User’s provision of services to such customers.

 

1.2.1            The Texting Services are provided by R.O. Writer through a third party integration with Twilio Inc., and by sending or receiving messages using the Texting Services, You agree to use such Texting Services in accordance with the Twilio Acceptable Use Policy, which is available at https://www.twilio.com/legal/aup and the Twilio Messaging Policy, which is available at https://www.twilio.com/legal/messaging-policy (each of which may be updated from time to time by Twilio in its sole discretion, and which are referred to herein collectively as the “AUP”).  End User further agrees and understands that R.O. Writer shall not be responsible for ensuring End User’s use of the Texting Services complies with the law, and End User is solely responsible for configuring and using the Texting Services provided in connection with the Software to send messages in compliance with the AUP and all applicable industry guidelines and federal state, and local laws and regulations, including, without limitation any communications and telemarketing laws, including the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, and its implementing regulations, 47 C.F.R. § 64.1200 et seq., the Telemarketing Sales Rule, and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003.

 

1.2.2            Licensor HIGHLY encourages End User to SEEK LEGAL COUNSEL to ensure End User is using the Texting Services in compliance with all applicable laws, regulations, and industry guidelines. You represent and warrant that: (a) to the extent the Software or the Texting Services provide any consent and/or messaging templates, You understand that such templates are provided as suggestions only, are not designed, intended, or represented to be compliant with any applicable laws or guidelines, and are intended for End User customization; (b) You, and not R.O. Writer, shall be the “maker,” “initiator” and “sender” of all messages ultimately sent using the Software and the Texting Services; (c) R.O. Writer does not control the content of your messages, the timing or sending of the message, the recipient list, or the design of your messaging campaign; (d) the owners of the phone numbers you initiate messages to through the Software and the Texting Services have “opted-in” or have provided You with prior express written consent to receive such messages, or You have determined that your messages otherwise do not require such “opt-in” by or consent of the individual according to applicable laws or guidelines; (e) You will include an opt-out mechanism in your messages when required to do so by any applicable laws or guidelines; (f) You will promptly honor any individuals exercising an opt-out and/or requesting do-not-call status; (g) You will not use the Software or Texting Services to transmit any material that (i) may infringe upon or violate the rights of any third party (including, without limitation, trademarks, copyrights, and right of publicity), (ii) is harmful, unlawful, racist, harassing, defamatory, abusive, threatening, obscene, or pornographic, or (iii) misleads others as to the identity of the sender of your messages, or (iv) contains viruses, Trojan horses, worms, time bombs, cancel-bots, or any other harmful or deleterious program; and (h) Your use of the Software and the Texting Services will, at all times, be in strict compliance with all applicable laws, regulations, and industry guidelines, and with the AUP.

 

2.0    Restrictions & Limitations.

 

2.1     Restrictions: End User agrees and understands that it shall not use the Software or the Texting Services for any purpose other than the purposes permitted by Section 1.0 and its subsections and it shall not use the Software to generate or transmit unlawful, derogatory, hateful, discriminatory, unprofessional content, messages and/or commercial solicitations.  End User further agrees to follow all applicable laws in using the Software and the Texting Services, regardless of product name and including any updates, improvements, modified applications, and successor products. End User also agrees that it shall not assign, sublicense, resell, rent, lease, transfer, reverse engineer, decompile, disassemble, reverse assemble, modify, adapt, translate, decrypt or create derivative works based on the Licensed Software, or use all or any portion of the Licensed Software for the purpose of deriving its source code. When the Software automatically performs updates, upgrades or repairs, You also agree not to interfere with or prevent such activities.

 

2.2    Limitations: Licensor, in its sole discretion, may establish policies and practices to modify the operation and availability of the Software and Services to maximize the benefit for all End Users and to prevent abuse of the Software and Services (e.g., modifying limits on content storage, bandwidth consumption, or messaging volume).  R.O. Writer reserves the right, in its sole discretion, to take technical and other remedies it deems appropriate to prevent abuse and/or excessive consumption of the Software and/or Services.

 

3.0    Licensed Software, Documentation and Intellectual Property Rights. End User acknowledges and agrees that except for the explicit rights granted in this Agreement, all other rights, including without limitation, intellectual property rights, and all title and interest, in and to the Licensed Software and Documentation will remain the sole and exclusive property of Licensor, and End User will not derive or assert any title or interest in or to the Licensed Software, Documentation or intellectual property rights of Licensor.  Further, Licensor has the right to retain and use any comments or suggestions regarding the Service by an End User to Licensor in current or future products or services, without any compensation to End User and/or without End User’s approval.  End User acknowledges techniques, algorithms, source codes, and processes contained as part of the Service constitute trade secrets and/or confidential information of Licensor. End User agrees to maintain the confidentiality of the Service.  End User also agrees not to remove any product identification or labeling from any element of the components of the Service or related materials.  No other right or license, either express or implied, under any patent, trademark, copyright, trade secret or intellectual property right of any kind is granted hereunder.

 

4.0    Term; Termination

 

4.1     Term; Renewal.  Unless terminated in accordance with Section 4.2, 4.3, or 4.4 of this EULA, the “Initial Term” with respect to all Licenses and subscriptions granted End User under this EULA shall be the period set out in the applicable sales order. At the end of the Initial Term (and each subsequent Renewal Term), End User’s Licenses / subscription shall automatically renew for additional successive “Renewal Terms” of equal length unless End User notifies Licensor in writing at least 90 days prior to the expiration of the then-current Initial Term or Renewal Term of End User’s desire to terminate its License / Services.

 

4.2    Termination for Convenience by End User. Notwithstanding anything contained herein to the contrary, an End User may terminate its License and end its use of the Software and the Services at any time, for any reason or no reason by providing written notice to Licensor. If End User terminates its License under this Section 4.2, End User will not receive a refund for any fees it paid in advance for future use of the License or the Services and shall additionally pay to Licensor an early cancellation fee equal to fifty percent (50%) of any Fees not yet paid to Licensor with respect to any remaining Term under the applicable sales order for the full contracted period. To avoid any confusion, if an End User contracted for a 12 month License at a rate of $100.00 per month and terminated its License after six months, the End User’s early cancellation fee would be $300.00.

 

4.3    Termination for Cause by Either Party.  Either party may terminate End User’s License hereunder if the other party is in default of any provision of this Agreement and such default is not corrected within thirty (30) days after the non-breaching party gives the breaching party written notice of default.

 

4.4    Immediate Termination for Cause by Licensor.

 

4.4.1            Licensor will have the absolute right, unless precluded by applicable law, to immediately terminate End User’s License if: (a) End User becomes insolvent within the meaning of any state or federal law; (b) End User makes an assignment for the benefit of creditors or enters into any similar arrangement for the disposition of its assets for the benefit of creditors; or (c) End User breaches any of the terms of or its obligations under this EULA, including without limitation those contained in Sections 1.0 through 3.0, including any subsections thereof.

 

4.4.2            In addition, unless prohibited by law, End User understands and agrees Licensor has the right, in Licensor’s sole discretion, to terminate End User’s License and the Service, or any component thereof and/or End User’s account, if Licensor determines, in Licensor’s sole discretion, End User is and/or is attempting to: (i) exceed or violate the rights or service limits Licensor establishes for End User, or otherwise violate this EULA, any policies or terms incorporated herein by reference, or any guidelines or policies posted on the Licensor website; (ii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Software or make error corrections to, or otherwise adapt or modify, or create derivative works based upon the Software; (iii) provide false information to set up an account, attempt to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining or any other means, or otherwise use the Software or the Services to impersonate any person, business or entity, including Licensor or its employees and agents; (iv) utilize the Software or the Services or any portion thereof as a means to track or monitor the location and activities of any individual without their express consent and authorization; (v) reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes the Software or the Service or any portion thereof, including without limitation any content other than End User’s personal digital content displayed in connection with the Software or the Services; (vi) transmit content that is, without limitation: unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, or fraudulent; invasive of another’s privacy; is tortious, or contains explicit or graphic descriptions, or accounts of, sexual acts, or illegally exploits or solicits personal information from a minor; (vii) victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, national origin, service in the armed forces, or disability; (viii) propagate software that contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network; (ix) encourage conduct that would constitute a criminal offense, or that gives rise to civil liability; (xi) engage in any activity that otherwise interferes with the use and enjoyment of the Software or Services by others, including without limitation: using the Software or Services in any way that may damage, disable, overburden, or impair Licensor’s servers or networks; harvesting personal information about other Software or Services users for any reason; transmitting, directly or indirectly, any unsolicited bulk communications (including e-mails and instant messages); (xii) sell, license, sublicense or otherwise transfer or make available the Software, Services, manuals, and documentation included in the Software or Services to any unauthorized (by Licensor) third party; (xiii) remove any product identification, copyright notices, or other notices or proprietary restrictions from the Software; (xiii) take any action to disable or circumvent any Software logic or computer code designed to restrict reproduction or usage of the Software or Services permitted under this EULA and the terms incorporated herein by reference; (xiv) rent, lease, license, loan or assign End User’s rights to the Software or Services or associated software or services to another party.

 

4.6.   Effect of Termination. Upon termination of the License granted hereunder, End User will promptly: (a) discontinue all use of the Licensed Software and Documentation; (b) return or destroy, at Licensor’s request, all Licensed Software and Documentation (in the case of the Licensed Software and any Documentation provided in electronic or digital format, by erasing them from the magnetic media and hardware system on which they are stored and, at Licensor’s request, returning the media and documentation, if any); (c) return or destroy, at Licensor’s request, all of Licensor’s confidential information; (d) certify in writing to Licensor, within thirty (30) days of such termination, that End User has complied with this Section; and (e) pay any fees or expenses that are or will become due through the effective date of termination (which amounts will immediately become due and payable).  All fees and expenses of any kind that have been paid are nonrefundable, for any reason, including termination of this Agreement. End User further acknowledges and understands that upon termination End User will no longer have access it its content/data, Licensor shall delete said content/data according to its policies, and End User is fully responsible for storing or backing up its content/data prior to termination, if it so desires.

 

4.7    Survival. Termination of End User’s License to the Software shall not affect any right, obligations, or liabilities accruing prior thereto, relating to any breach of this Agreement, or intended to survive such termination.

 

5.0    Fees; Taxes and Other Charges.

 

5.1     Fees. The Fees payable by End User for the Service shall be as set forth and payable in accordance with End User’s work/sales order, which Fees may be adjusted by Licensor.  End User shall pay all Fees by credit card or ACH pursuant to the charge authorization provided to by End User to Licensor by the payment date listed on the applicable sales order. Licensor may add a late charge equal to the lesser of 1.5% per month or the maximum amount allowed by applicable law for any Fees that End User does not timely remit. Licensor grants End User a five (5) business-day grace period in which to remit payment before applying late charges. If End User fails to remit payment within the foregoing grace period, Licensor may additionally suspend End User’s access to the Software and Services. In no event shall Licensor or its parents, subsidiaries, and/or affiliates be liable for any damages such suspension may cause.

 

5.2    Taxes, Duties, and Other Charges. End User shall pay all taxes, including without limitation, sales, use, value added, and withholding taxes, payable with respect to the Licenses and Services provided to End User pursuant to this Agreement, other than taxes based upon the net income of Licensor. This includes the aforementioned and any and all import duties, customs fees, levies or imposts, or other taxes of any nature and any penalties, interest and collection or withholding costs associated with any of the foregoing items.  All such amounts are in addition to other amounts payable hereunder, and this obligation shall survive termination or expiration of the Licenses and Services.  You are further responsible for obtaining import licenses and preparing and submitting all required documentation in connection with importing Software, including obtaining and providing to Licensor international import certificates and other supporting documentation required by Licensor as applicable.

 

6.0    Warranties; Indemnification.

 

6.1     Limited Warranties. Subject to the limitations set forth below, Licensor warrants that for a period of thirty (30) days, commencing on the date this Agreement is accepted by You, the Licensed Software will materially conform to the specifications set forth in the Documentation. End User’s sole and exclusive remedy for a breach of warranty under this section will be limited to repair or replacement of any defective media and correction of non-conforming Licensed Software or demonstrable errors, as applicable, and, further, will only be available to End User if Licensor is notified in writing within the warranty period. The limited warranties set forth in this Section 6.1 are conditioned upon proper use of the Licensed Software and Services in accordance with the Documentation and this Agreement and will not apply to (a) any Licensed Software or Services that has been subject to misuse, failure to comply with applicable operating instructions, improper installation, repair, alteration or damage, either by End User or a third party; or (b) problems arising as a result of the use of the Licensed Software or Services in connection with any non-compatible software and/or hardware.

 

6.2    Exclusion of Warranty.  EXCEPT AS STATED IN SECTION 6.1 OF THIS EULA, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND.  EXCEPT FOR ANY WARRANTY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, R.O. WRITER, ITS SUPPLIERS, AND AUTHORIZED PARTNERS MAKE NO WARRANTY, WHETHER EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE.  NO THIRD PARTY IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY AND LICENSOR DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE BY PERSONS OTHER THAN LICENSOR.You assume responsibility for selecting the Software and Services to achieve your intended results, and for the installation of, use of, and results obtained from the Software and Services.  Without limiting the generality of the foregoing, neither Licensor, nor any other person makes any warranty that the Licensed Software or Services will meet End User’s requirements or that the operations of the Licensed Software or Services will be uninterrupted or error free.  End User assumes all responsibility for End User’s use of the Software and Services and the results obtained from such use.

 

6.3    Indemnification by Licensor. If End User gives to Licensor prompt written notice of and the right to control the defense of any claim for which Licensor is obligated to indemnify End User under this Section 6.3, Licensor will indemnify, defend and hold harmless End User from and against damages (subject to the limitations set forth in Section 7.0) actually awarded against End User to a third party resulting from such third party’s claims or any settlement agreed to by Licensor in favor of such third party alleging that the Licensed Software or Documentation infringes or violates any superior rights of any third party in or to: (a) United States patent, (b) trademark, (c) copyright, or (d) trade secret.  Licensor has the right to (a) assume the defense of such claim and select counsel and (b) consent to the entry of judgment with respect to, or otherwise settle such claim.  End User shall, at Licensor’s expense, cooperate in Licensor’s defense or prosecution of such claim.  Should the Licensed Software or Documentation become, or in Licensor’s opinion be likely to become, the subject of a claim of infringement, Licensor will also, at its sole option (a) obtain for End User the right to continue using the allegedly infringing material pursuant to the terms and conditions of this Agreement; (b) replace or modify the allegedly infringing material so that it becomes non infringing but functionally equivalent; or (c) terminate End User’s License under this Agreement if, in Licensor’s sole discretion, neither of the foregoing options is commercially feasible, with Licensor’s sole obligation to End User with respect to such termination (and for clarity, in addition to Licensor’s obligation to indemnify End User for any applicable third party damages awarded) being to refund to End User the initial license fee less 25% of such fee for each year the End User has used the Software.  The foregoing indemnification obligation will not apply to any claim based on or arising from: (i) software not owned or developed by or on behalf of Licensor, (ii) the combination of the Licensed Software with other products not owned or developed by or on behalf of Licensor provided the infringement arises in connection with the combination, (iii) software supplied by Licensor in accordance with End User’s designs, specifications, or instructions, (iv) the failure of End User to use updated or corrected Licensed Software or Documentation provided by Licensor, or (v) the failure of End User to use the Licensed Software or Documentation for its intended purposes.

 

6.4    Indemnification by End User.  End User shall defend, indemnify and hold Licensor and all of its parents, subsidiaries, affiliates and related companies and it and their successors, predecessors, employees, officers, and directors harmless from any damages, costs, expenses, including reasonable attorney’s fees, liabilities, and/or penalties related to any claims and/or causes of action arising out of End User’s breach of any of its representations or warranties contained in this EULA or End User’s use or misuse of the Software or Services (including without limitation the Texting Services), including without limitation any claims alleging End User uses or has used the Software or Services in violation of any law (state, federal, local, common, provincial, etc.), including but not limited to, the TCPA, CAN SPAM Act, Anti-Spam laws, defamation, privacy laws, and/or harassment or the AUP that is incorporated herein by reference.

 

7.0    Limitation of LiabilityTO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR ANYONE ELSE ACTING ON THEIR BEHALF BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, MULTIPLE OR RELIANCE DAMAGES INCURRED BY ANY PARTY HERETO OR ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT AND/OR THE USE OR NON-USE OF THE SOFTWARE AND SERVICES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR DAMAGES FOR LOSS OF PROFITS, SAVINGS, DATA, BUSINESS INFORMATION OR USE, HOWEVER IT ARISES, WHETHER SUCH DAMAGES ARE ALLEGED IN CONTRACT, TORT OR OTHERWISE, EVEN IF ANY SUCH ENTITY IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE DAMAGES ARE FORESEEABLE.  THE RESPONSIBILITY OF LICENSOR TO REMIT, REIMBURSE OR IN ANYWAY PAY LIABILITIES, COSTS, PENALTIES, EXPENSES AND/OR ANY OTHER FORM OF DAMAGES SHALL BE LIMITED TO THE DOLLAR VALUE EQUAL TO END USER’S AVERAGE ONE (1) MONTH FEE (DETERMINED BY THE AVERAGE MONTHLY FEE END USER HAS PAID LICENSOR OVER THE LIFE OF THIS AGREEMENT) END USER HAS PAID LICENSOR TO USE THE SOFTWARE TIMES TWELVE (12). THIS LIMITATION INCLUDES LICENSOR’S INDEMNIFICATION OBLIGATIONS.  THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR TO END USER AND ITS AFFILIATES, SUCCESSORS AND ANYONE ACTING ON END USER’S BEHALF, WHETHER FOR DAMAGES OR OTHERWISE, FOR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ANY LICENSED SOFTWARE, SERVICES, OR DOCUMENTATION AND ANY WARRANTY CLAIMS, INCLUDING EXPRESS AND/OR IMPLIED WARRANTIES OF ALL KINDS.

 

8.0    Data Collection / Privacy Rules and Tracking.

 

8.1     End User Data.  The Software may store End User Data in connection with Your use of the Software and Services, End User hereby represents and warrants it has all necessary rights to provide and make available the End User Data to R.O. Writer and its current and/or future subsidiaries, parents or affiliate(s), and with respect to any Franchisee User to Midas, as described in this EULA. “End User Data” shall mean any data, information or other materials of any nature whatsoever provided or made available to R.O. Writer in the course of End User’s use of the Software and Services. End User Data may include information about Your mobile device(s) and information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, or any other information that is regulated as “personal data” or “personal information” under applicable law (“End User Personal Data”). You also agree that R.O. Writer and its affiliates and service providers may copy and store any data that is stored in the Software (including without limitation End User Data, Usage Data, End User Personal Data, personally identifiable and sensitive data which You made part of Your content or provided in Your Account) in the United States, Europe, or other countries or jurisdictions outside of Your own as part of the Services.

 

8.2    Data Processing; Use of Aggregated Data and Usage Data. End User hereby does grant to R.O. Writer and its current and/or future subsidiaries, parents or affiliate(s) a non-exclusive, royalty-free license to collect, access, copy, store, record, back-up, combine, analyze, transmit, maintain, display, disclose, share, make available, view, print, delete, or otherwise use or process (“Process”) End User Data only as necessary for R.O. Writer to provide the Services, including R.O. Writer’s provision, back-up, storage and maintenance of and modifications and improvements to the Services. This includes, without limitation, for purposes of providing additional services requested by the End User, for purposes of enforcing this EULA, and for purposes of complying with applicable law or court order. R.O. Writer may combine data received from one or more entities to which R.O. Writer provides the Service, to the extent necessary to detect data security incidents, or protect against fraudulent or illegal activity. R.O. Writer is prohibited from using, retaining, disclosing, or otherwise processing End User Data for any other purpose. For the avoidance of doubt, except as set forth in Section 8.3, R.O. Writer may not sell, resell, lease, assign, rent, sublicense, distribute, transfer, disclose, time-share or otherwise exchange End User Data (or any portion thereof) for monetary or other consideration. Notwithstanding the foregoing, End User hereby grants to R.O. Writer and its current and/or future subsidiaries, parents or affiliates(s) a non-exclusive, royalty-free, irrevocable, perpetual license to Process End User Data that is “deidentified” or “aggregated” (as those terms are defined under applicable law), for analyzing and improving the Service, marketing and promoting the Service, and for other R.O. Writer purposes in R.O. Writer’s discretion. End User also acknowledges and agrees that R.O. Writer may also collect general statistical information about End User’s use of the Service and information regarding End User’s operating environment, including, without limitation, information regarding the End User’s mobile device(s), network, processor, computer memory, installed software and configurations and other miscellaneous hardware (“Usage Data”). Usage Data shall be owned by R.O. Writer, and R.O. Writer may process the Usage Data for its own business and commercial purposes.

 

8.3    Midas Franchisee Data.  If End User is affiliated with a dealer that is a franchisee of Midas International, LLC (together with its parents and affiliates, “Midas,” and any such End user, a “Franchisee User”), this Section 8.3 shall also apply.  Franchisee User hereby authorizes R.O. Writer to share the End User Data with Midas to use for any of the purposes set forth above on behalf of Franchisee User, and as necessary for Franchisee User’s other commercial purposes, including royalty reporting, warranty registration and compliance verification with respect to the foregoing items. In addition, Franchisee User permits and authorizes R.O. Writer to provide the End User Data that is “deidentified” or “aggregated” (as those terms are defined under applicable law) to Midas for Midas’s use in marketing and sales analytics systems, provided that said deidentified or aggregated End User Data is used only in connection with the franchise system of which Franchisee User is a part. If End User is not a Franchisee User, End User shall disregard this Section 8.3 in its entirety.

 

9.0   Data Service Charges & Equipment:  You are responsible for any charges incurred with Your mobile service provider as a result your use of the Software, including any overage and penalties assessed for exceeding the limits imposed by Your mobile service provider.  Use of certain benefits and features of the Software may require access to and communication with Licensor’s servers through Your mobile service provider’s network, consuming data or minute allowance limits You purchased from Your mobile service provider, such as: software downloads and updates, content synchronization, data transfers, device tracking, locking and wiping, and, among other things, collection of device information that is necessary to provide the Software. You are also responsible for the cost of Your equipment and to ensure that Your equipment meets the system requirements of the Software, including obtaining updates or upgrades from time to time from Your mobile device service provider in order to continue using the Software.  Licensor may modify system requirements or the Software at any time.  LICENSOR DOES NOT WARRANT OR GUARANTEE THAT ANY PARTICULAR MOBILE DEVICE, COMPUTER OR ANY OTHER DEVICE WILL BE COMPATIBLE OR FUNCTION WITH THE SOFTWARE, NOR DOES LICENSOR WARRANT OR ACCEPT ANY LIABILITY FOR OPERATION OF YOUR PERSONAL EQUIPMENT USED TO ACCESS THE SOFTWARE.  Necessary equipment may include: a mobile device, a GSM mobile connection (supporting SMS and data connection), a computer, Internet access, and, among other things, third party software or services.

10.0 Miscellaneous.   End User acknowledges and agrees that this EULA may be amended or modified by Licensor at any time, including without limitation at such times as Licensor may make available updates or upgrades to the Software, or by posting the updated version at on its website at https://info.rowriter.com/eula-dvi-suite, which End User should regularly check for updates and/or changes.  End User acknowledges and agrees that it is End User’s sole responsibility to read this EULA, as may be modified from time to time, and that End User shall be deemed to have accepted any amendments or modifications to this EULA if End User installs or has installed any updates or upgrades to the Software.  End User further agrees that its continued use of the updated or upgraded Software shall also constitute acceptance of any amendments or modifications to this EULA.  This EULA shall be governed by and construed in accordance with the laws of the State of Maryland applicable to contracts made in and to be performed in that state. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction and venue of the courts located in Baltimore County, Maryland for any actions, suits or proceedings arising out of or relating to this Agreement (and the parties agree not to commence any action, suit or proceeding relating thereto except in such courts), and further agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.  The parties hereto waive any right to a trial by jury.  This EULA and the corresponding work/sales order together, including any additional terms that are incorporated by reference therein, constitute the entire understanding between Licensor and End User with respect to the Software, and supersede all prior discussions, representations, understandings or agreements, including without limitation any prior versions of this EULA, whether oral or in writing between Licensor and its predecessors and assignees (including without limitation Progressive Automotive Systems, LLC) and End User with respect to the subject matter of this EULA.  End User shall not sublicense, transfer, rent or lease any Licensed Software without Licensor’s prior written consent.  End User will not knowingly export or re‑export, directly or indirectly, any technical data (as defined in the U.S. Export Administration Regulations) produced or provided under this EULA to a destination to which such export or re‑export is restricted or prohibited by U.S. or non‑U.S. law.  Except for End User’s obligation to pay amounts owed under this EULA, neither party will be held liable or deemed to be in default for any delay or failure in performance under this EULA due to any cause outside its reasonable control.  In the event that any provision of this EULA is held by a court of competent jurisdiction to be invalid, such provision will be severed from the EULA and will not affect the validity of this EULA as a whole or any of its other provisions. Any notice required or permitted under this EULA must be in writing and sent by certified mail, Federal Express or any other nationally recognized overnight courier or via facsimile, with written acknowledgement from the recipient, to the notice contact for End User at the address Licensor has on file for End User and to the attention of the General Manager for R.O. Writer at the address listed in the first paragraph.