The ProStar Geocorp (“ProStar”) PointMan software is available through the Apple App Store licensed, not sold, to you. Your license to PointMan is subject to your prior acceptance of either this Licensed Application End User License Agreement (“ProStar EULA”), or a custom end user license agreement between you and ProStar (“Custom EULA”), if one is provided. Your license to PointMan under this ProStar EULA or Custom EULA is granted by ProStar. The ProStar (“Licensor”) reserves all rights in and to PointMan not expressly granted to you under this ProStar EULA.
a. Scope of License: ProStar grants to you a nontransferable license to use PointMan on any Apple-branded or Android products that you own or control and as permitted by the Usage Rules. The terms of this ProStar EULA will govern any content, materials, or services accessible from or purchased within PointMan as well as upgrades provided by ProStar that replace or supplement the original PointMan, unless such upgrade is accompanied by a Custom EULA. Except as provided in the Usage Rules, you may not distribute or make PointMan available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense PointMan and, if you sell your Apple or Android Device to a third party, you must remove PointMan from the Apple or Android Device before doing so. You may not copy (except as permitted by this license and the Usage Rules), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of PointMan, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with PointMan).
b. Consent to Use of Data: You agree that ProStar may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to PointMan. ProStar may use this information, if it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
c. Termination. This ProStar EULA is effective until terminated by you or ProStar. Your rights under this ProStar EULA will terminate automatically if you fail to comply with any of its terms.
d. External Services. PointMan may enable access to ProStar’s and/or third-party services and websites (collectively and individually, “External Services”). You agree to use the External Services at your sole risk. ProStar is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including butnot limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by ProStar or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this ProStar EULA or that infringes the intellectual property rights of ProStar or any third party. You agree not to use the External Services to harass,abuse, stalk, threaten or defame any person or entity, and that ProStar is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose touse such External Services, you are solely responsible for compliance with any applicable laws. ProStar reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
e. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF POINTMAN IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POINTMAN AND ANY SERVICES PERFORMED OR PROVIDED BY PROSTAR ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PROSTAR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO POINTMAN AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROSTAR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD POINTMAN OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
f. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PROSTAR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE POINTMAN,HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF PROSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall ProStar’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
g. You may not use or otherwise export or re-export PointMan except as authorized by United States law and the laws of the jurisdiction in which PointMan was obtained. In particular, but without limitation, PointMan may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals Listor the U.S. Department of Commerce Denied Persons List or Entity List. By using PointMan, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
h. PointMan and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
i. Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and ProStar shall be governed by the laws of the State of Colorado, excluding its conflicts of law provisions. You and ProStar agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Mesa, Colorado, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction ofthe courts located in the state, province or country identified below whose law governs:
If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.