PLEASE READ THIS UTOBO END USER LICENSE AGREEMENT (THE “EULA“) CAREFULLY. THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR A SINGLE ENTITY) (“You“, “Your” or “Subscriber“) AND UTOBO (“utobo“) (PROVIDER OF THE UTOBO PLATFORM PROMOTED BY Utobo Inc), LOCATED AT 340 S LEMON AVE #9894 WALNUT, CA 91789, DELAWARE USA
1.Definitions. For purposes of this EULA, the following capitalized terms have the meanings set forth below. Other capitalized terms are defined in context.
1.Documentation. The term “Documentation” means the written, audio or visual (whether in print or electronic, as the case may be) technical descriptions of the utobo Software’s features and functionality that utobo may make available and update from time-to-time in its sole discretion.
2.utobo Platform.The term “utobo Platform” ” means the platform application that utobo makes available for use via the utobo Website to those users that have obtained a license from utobo pursuant to this EULA, and as such platform is further described in its documentation.
3.Effective Date. The term “Effective Date” means the date upon which You enter into this EULA by clicking the “I Accept” button or otherwise access or use the utobo Software.
4.Intellectual Property Rights. The term “Intellectual Property Rights” means any rights (whether owned or licensed) existing now or in the future under patent law, copyright law, trademark law, data and database protection law, trade secret law and any and all similar proprietary rights. The term Intellectual Property Rights means those rights as they exist as of the Effective Date, and all such rights subsequently acquired.
5.Order Terms. The term “Order Terms” means the order terms presented to You or during Your purchase of a license to the utobo Software via the utobo Website, and that specify the applicable fees, the subscription period for Your license and other payment terms.
7.Output Code. The term “Output Code” means the computer code meeting the following three criteria, the computer code: (i) is generated by the utobo Software; (ii) comprises the Subscriber Application; and (iii) is made available to You via the utobo Software.
8.Party or Parties. The term “Party” or “Parties” means: (i) utobo; (ii) You; or (iii) utobo and You, as the context permits.
10.utobo Assets. The term “utobo Assets” means, collectively: (i) the utobo Software; (ii) Documentation; and (iii) the utobo Website.
11.utobo Website. The term “utobo Website” means the website operated by utobo and through which the utobo Software is available to those who have entered into this EULA.
12.Source Code. The term “Source Code” means computer programs, instructions and related material written in a human-readable source language in a form capable of serving as the input to a compiler or assembler program, and in form capable of being modified, supported and enhanced by programmers reasonably familiar with the source language.
13.Subscriber Application. The term “Subscriber Application” means the software application generated by the utobo Software based on the Subscriber Input. The term Subscriber Application expressly excludes the utobo Software and expressly includes the related Output Code.
14.Subscriber Assets. The term “Subscriber Assets” means, collectively: (i) the Subscriber Application; (ii) Subscriber Application Modifications; (iii) Subscriber Input; and (iv) Contributions.
15.Subscriber Application Modifications. The term “Subscriber Application Modifications” means any modification to the Subscriber Application made by or at the direction of You.
16.Subscriber Input. The term “Subscriber Input” means the data, information or other materials that You provide to utobo via the utobo Software’s functionality.
2.Grant of Rights to You.
1.Non-Exclusive Rights in utobo Platform.. Subject to the terms and conditions of this EULA, utobo, under its Intellectual Property Rights, hereby grants to You during the Subscription Term a limited, non-exclusive, non-transferrable and non-sub licensable license to access the utobo Platform as it is made available to You by utobo via the utobo Website using the provided Subscriber Credentials in order to use the utobo Platform as permitted by its functionality for the sole purpose of generating Subscriber Applications.
2.Restrictions. You agree that You shall not: (i) sell, rent, lease, sublicense, transfer, modify, create derivative works of or redistribute the utobo Platform; (ii) except as expressly permitted pursuant to Section 2.1.1 (Non-Exclusive Right in utobo Platform), otherwise use or exploit the utobo Platform; (iii) alter or remove any copyright, patent, trademark or other protective notices included with the utobo Platform; (iv) reverse engineer, decompile or disassemble the utobo Platform or otherwise attempt to derive any related Source Code; or (v) allow any third party to access or otherwise use the utobo Platform (either with or without Your Subscriber Credentials).
3.Subscriber Credentials. The term “Subscriber Credentials” means the identifiers (such as an email address and password) that are used to authenticate you in order to provide you with the appropriate level of access to the utobo Platform. utobo relies on Your Subscriber Credentials to verify your identity in order to provide you with access to the utobo Platform via the utobo Website. Accordingly, You agree that: (i) You shall: (1) not share Your Subscriber Credentials with any third party; (ii) immediately notify utobo if the security, confidentiality or integrity of Your Subscriber Credentials have been compromised; and (iii) You are: (a) solely responsible for generating Your Subscriber Credentials through the utobo Website; (b) solely responsible for maintaining the confidentiality of Your Subscriber Credentials; and (c) solely liable for any and all use of the utobo Platform that occurs as a result of access to it via Your Subscriber Credentials.
2.Documentation. Subject to the terms and conditions of this EULA, utobo, under its Intellectual Property Rights, hereby grants to You during the Subscription Term a limited, non-exclusive, non-transferrable and non-sublicensable license to use, copy, modify, perform, display, distribute and otherwise exploit the Documentation, but solely for Your internal business purposes and otherwise in connection with Your access to and use of the utobo Software pursuant to this EULA.
3.No Implied Rights. Nothing in this EULA shall be construed as granting You any rights other than those expressly provided herein. Any rights granted to You under this EULA must be expressly provided herein, and there shall be no implied rights pursuant to this EULA, based on any course of conduct or other construction or interpretation thereof. All rights and licenses not expressly granted to You herein are expressly reserved by utobo.
3.Grant of Rights to utobo.
1.Subscriber Input. Subject to the terms and conditions of this EULA, You, under Your Intellectual Property Rights, hereby grant to utobo during the Subscription Term a limited, non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable and transferable license to use and exploit Subscriber Input for all purposes contemplated under this EULA, the Documentation and the utobo Software’s functionality. By way of clarification, and not limitation, utobo shall have the right to modify Your Subscriber Input for the purpose of developing the Subscriber Application.
2.Contributions. Subject to the terms and conditions of this EULA, You, under Your Intellectual Property Rights, hereby grant to utobo a non-exclusive, perpetual, worldwide, irrevocable, royalty-free, fully paid-up, sublicensable and transferrable license to use and exploit Your suggestions, recommendations or ideas relating to the utobo Assets (collectively, the “Contributions“) for any and all purposes and for as long as utobo sees fit. By way of clarification, and not limitation, You agree that (i) You have no expectation of review, compensation or other consideration for utobo’s use and exploitation of the Contributions, and (ii) utobo is free to use and exploit the Contributions in utobo’s discretion and without compensation or other obligation to You.
3.License to Use Subscriber Assets for Publicity. Subject to the terms and conditions of this EULA, You, under Your Intellectual Property Rights, hereby grant to utobo a limited, non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, and transferable license to use and exploit Subscriber Assets for utobo’s promotional or marketing efforts. You hereby consent to the inclusion of Your name and logos in materials that utobo may publish as part of such promotional and marketing efforts.
1.Ownership of utobo Assets. You agree that, as between You and utobo, and subject to the grant of rights to You set out in Section 2 (Grant of Rights to You), utobo is the sole and exclusive owner of all of the right, title and interest in and to the utobo Assets (and all associated Intellectual Property Rights).
2.Ownership of Subscriber Application. . Subject to the terms and conditions of this EULA, utobo agrees that, as between You and utobo, You are the sole and exclusive owner of all of the right, title and interest in and to the Subscriber Application (Excluding Output Code) generated by the utobo Platform using Your Subscriber Input. By way of clarification, and not limitation, nothing in this EULA is intended or shall otherwise be construed as a representation, warranty or other commitment by utobo regarding your ownership interest in or to the Subscriber Application relative to any third party, including other utobo Platform users.
3.Ownership of Subscriber Application Modifications, Subscriber Input and Contributions. utobo agrees that, as between you and utobo, and subject to the grant of rights to utobo set out in Section 3 (Grant of Rights to utobo), you are the sole and exclusive owner of all of the right, title and interest in and to the Subscriber Application Modifications, Subscriber Input and Contributions (and all associated Intellectual Property Rights). By way of clarification, and not limitation, nothing in this EULA is intended or shall otherwise be construed as a representation, warranty or other commitment by utobo regarding your ownership interest in or to the Subscriber Application Modifications, Subscriber Input and Contributions relative to any third party, including other utobo Platform users.
5.Similar Uses. You agree that (i) the utobo Platform generates platform applications based on user-provided input and that users (other than You) may provide input that is the same as, or substantially similar to, Your Subscriber Input (the “Similar Input“), and (ii) based on the Similar Input provided by other users, the utobo Platform may generate a platform application (including Output Code) that is the same as, or substantially similar to, Your Subscriber Application (each, a “Similar Application“). Notwithstanding anything to the contrary, You agree that You shall not challenge, threaten to challenge, sue, threaten sue or otherwise take any action against (or encourage or assist any third party) utobo based on any Similar Input or Similar Application, or the utobo Platform’s functionality, and (b) contractually ensure that any third party that You provide any right, title or interest in and to Your Subscriber Input or Subscriber Application agrees to not to challenge, threaten to challenge, sue, threaten sue or otherwise take any action against (or encourage or assist any third party) utobo based on any Similar Input or Similar Application, or the utobo Platform’s functionality.
6.Subscription. Subject to the terms and conditions of this EULA, You may generate multiple Subscriber Applications using your access to the utobo Platform; provided, however, that each Subscriber Application You generate shall be considered a separate project (each, a “Project”). You may access the utobo Platform to work on a Project for free (each, a “Free Project”) or by a paid subscription (each, a “Premium Project”) based on the Order Terms.
1.Free Project.With respect to a Free Project, You may only access and use basic functionalities and features (collectively, the “Basic Feature”) of the utobo Platform. For example, your access in connection with Free Project does not include the ability to download the source code of the Subscriber Application. utobo reserves the right, in its sole discretion, without prior notice or liability, to add, remove, or otherwise modify any Basic Feature in connection with a Free Project.
2.Premium Project.With respect to a Premium Project, You may access and use premium functionalities and features (collectively, the “Premium Features”) of the utobo Platform, in addition to Basic Features listed in plans and pricing as Standard, Premium and Ultimate For example, Your access in connection with a Premium Plan includes: additional features and functions that utobo may add or remove from time-to-time in its sole discretion. Deployment services are subject to meeting basic app requirements as established by Google and Apple.
3.Branding. For each Project, We may offer you the ability to download a compiled version of the applicable Subscriber Application in an IPA and/or an APK file formats (each, a “Compiled App”). If You generate a Subscriber Application based on a Free Project, the applicable Compiled App will include a utobo-branded splash screen (the “Branding”) that You must not remove from the Compiled App. If You generate a Subscriber Application based on a Premium Project, You may download a Compiled App without the Branding.
4.Free Trials. utobo may offer You to upgrade a Free Project to a Premium Project for a limited duration of time (each, a “Free Trial”). Upon the expiration of the Free Trial, Your access to Premium Features shall immediately end for the applicable Project. utobo reserves the right, in its sole discretion, without prior notice or liability, to withdraw or modify a Free Trial at any time and for any reason.
7.Support Services During the Subscription Term, utobo shall use commercially reasonable efforts to make the utobo Platform available to You without significant interruption or material deviations of the utobo Platform from its applicable Documentation (each, an “Error“). If the utobo Platform experiences material Errors that are not due to scheduled or intended downtime or as a result of events beyond utobo’ s control, utobo shall use commercially reasonable efforts to restore the intended functionality. You may contact utobo technical support during its operating business hours to report Errors. In addition to taking reasonable steps that utobo deems appropriate in response to reproducible Errors that utobo determines to be commensurate with the severity of the Error, utobo may also provide you with information regarding the availability of the utobo Platform.
8.Custom Services. If you desire utobo to develop platform, computer code or other services not available through the utobo Platform (the “Custom Services“), you may present a written request to utobo at email@example.com outlining such work. The Parties shall then negotiate in good faith a written statement of work that includes a detailed description of the Custom Services, an estimated delivery schedule and associated fees. If both Parties agree to the statement of work, they shall enter into a separate agreement relating to the Custom Services.
9.Monitoring. You agree that utobo may monitor and audit your use of the utobo Platform to confirm your compliance with this EULA and for utobo’ s other business purposes, including analysing and improving the utobo Platform.
10. Payment Terms; Taxes. You shall pay the fees in accordance with the payment terms included in the Order Terms. All fees are exclusive of all applicable taxes and You agree to pay all taxes (including, but not limited to, sales, use, excise and value-added taxes), tariffs, duties, customs fees or similar charges imposed or levied on utobo or You arising out of this EULA, except for taxes on utobo’s net income.
11. Your Representations and Warranties. You represent and warrant to utobo that: (i) the Subscriber Assets do not and shall not infringe the Intellectual Property Rights of a third party; (ii) You shall not upload any virus or malicious code to the utobo Software or otherwise use the utobo Software to develop a virus or malicious code; (iii) You have the full power and authority to enter into this EULA and to carry out Your obligations under this EULA; and (iv) Your performance under this EULA does not violate any existing agreement between You and any other person or entity.
12. WARRANTY DISCLAIMER. utobo DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE utobo ASSETS and THE SUBSCRIBER APPLICATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. utobo DOES NOT REPRESENT OR WARRANT THAT THE utobo ASSETS OR SUBSCRIBER APPLICATIONS ARE ERROR FREE, WILL OPERATE IN AN UNINTERRUPTED MANNER, ARE COMPLETELY SECURE OR WILL INTEROPERATE WITH THIRD PARTY SOFTWARE OR SERVICES. The utobo ASSETS AND SUBSCRIBER APPLICATIONS ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND ARE SUBJECT TO CHANGE OR TERMINATION AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE. The utobo ASSETS AND SUBSCRIBER APPLICATIONS ARE NOT DESIGNED OR MANUFACTURED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN The OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT SYSTEMS OR WEAPON OR COMBAT SYSTEMS, IN WHICH THEIR FAILURE COULD LEAD TO PERSONAL INJURY, DEATH OR PROPERTY OR ENVIRONMENTAL DAMAGE. utobo DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
13. Limit of Liability. IN NO EVENT SHALL utobo BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF utobo HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL utobo’S LIABILITY, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT OF PAYMENTS MADE TO utobo BY YOU OVER THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE CLAIM.
14.USA Government Terms and Conditions; Exportation. If you are the USA Government or any agency or instrumentality of the USA Government, the utobo Platform is commercial computer platform provided with RESTRICTED RIGHTS. Consistent with the above as applicable, Commercial Computer platform and Commercial Computer Documentation is licensed to USA government end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this EULA. You agree not to use or otherwise export or re-export the utobo Platform except as authorized by USA law.
15. Your Indemnification. You shall defend, indemnify and hold utobo and its affiliates and their respective officers, directors, employees and agents harmless from and against any third party claim, action, suit or proceeding resulting from: (i) Your breach of Your representations and warranties set out in this EULA; (ii) any injury to persons caused by Your failure to exercise reasonable care or Your willful misconduct; (iii) any other breach of Your obligations under this EULA; (iv) Your use or exploitation of the utobo Assets and Subscriber Assets; and (v) utobo’s use of the Subscriber Assets. You shall indemnify utobo for all losses, damages, liabilities and all reasonable expenses and costs incurred by utobo in any such claim, action, suit or proceeding. utobo shall: (a) give You reasonable written notice of any claim, action, suit or proceeding for which utobo is seeking indemnification; (b) granting control of the defense and settlement to You; and (c) reasonably cooperate with You at Your expense. utobo is entitled to participate in any defense at its own expense with counsel of its own choosing.
16. Confidentiality. Confidential Information under this EULA shall consist of all non-public information disclosed by utobo, whether oral or in writing (including electronic transmission): (i) that is designated as “Confidential” or “Proprietary” by utobo at the time of disclosure or within a reasonable period thereafter; (ii) that concerns the customers, finances, methods, research, processes or procedures of utobo; or (iii) that by the nature of the circumstances surrounding disclosure, or the information itself, should in good faith be treated as confidential (collectively, the “Confidential Information“).
1. Non–Disclosure; Standard. You shall retain Confidential Information in strict confidence and shall not use such Confidential Information except for purposes permitted under this EULA. You shall be entitled to disclose Confidential Information on a need-to-know basis to Your employees, provided such employees are bound by non-disclosure and confidentiality obligations no less protective than those set out in this EULA. You shall use at least the same degree of care in safeguarding the Confidential Information as You use in safeguarding Your own confidential information, but shall not use less than reasonable care and diligence. You shall return or destroy all Confidential Information (including, but not limited to, all copies of the same) in Your possession or control immediately upon utobo’s request.
2. Exceptions. Your obligations with respect to Confidential Information shall not apply to Confidential Information which You can demonstrate: (i) is or becomes a matter of public knowledge through no fault of Yours; (ii) was or becomes available to You on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to utobo with respect to such Confidential Information; (iii) was independently developed by You without reference to the Confidential Information; or (iv) is required to be disclosed by law, provided that utobo is promptly notified by You in order to provide utobo an opportunity to seek a protective order or other relief.
17. Term and Termination. earlier terminated pursuant to this Section 16 (Term and Termination), this EULA shall come into force and effect on the Effective Date and shall continue for the period selected by You pursuant to the Order Terms (the “Subscription Term“), and shall automatically renew under the same terms and conditions as further explained in the Order Terms. If either Party is in material breach of any obligation under this EULA, the non-breaching Party may terminate this EULA for cause upon written notice after first (i) providing the other Party with written notice of the breach (a “Notice of Breach“), and (ii) providing thereafter a thirty (30) day opportunity to cure beginning on the date of receipt by the alleged breaching Party of the Notice of Breach. You agree that, notwithstanding anything to the contrary, upon termination or expiration of this EULA for any reason, Your rights to the utobo Software and Documentation shall immediately terminate and You shall immediately stop accessing or otherwise using the utobo Software and Documentation. Unless the Company is required to retain the Documentation for a mandatory time period specified by provisions of applicable law, the Company, at its sole discretion, may immediately or within a reasonable period of time, delete all the Documentation.
18.Changes to the EULA. utobo may from time to time amend this EULA to further detail or describe reasonable restrictions on your use of the utobo Platform by publishing a revised version of the EULA at (https://utobo.com/utobo-terms.php). The revised EULA will become effective upon publishing.18.General. This EULA shall be governed and construed in all respects in accordance with the USA laws without regard to any conflict of laws principles. The exclusive venue and jurisdiction for any action or proceeding arising out of this EULA shall be the state and courts located in Delaware USA. The Parties accept the personal jurisdiction of such courts. This EULA is not assignable by you. utobo reserves the right to assign the rights and obligations under this EULA for any reason and in utobo’s sole discretion. utobo shall not be liable hereunder by reason of any failure or delay in the performance of its obligations due to any other cause which is beyond its reasonable control. Any provision of this EULA determined to be unenforceable or invalid by applicable law or court decision shall not render this EULA unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted so as to best accomplish its objectives within the limits of applicable law or court decision. utobo’s failure to require Your performance of any obligation herein shall not affect the full right to require such performance at any time thereafter. utobo’s waiver of Your breach of any obligation under this EULA shall not be taken or held to be a waiver of the obligation itself or of any past or subsequent breaches of the same obligation. This EULA and the Other Agreements (which are incorporated into this EULA for all purposes), sets forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this EULA. In the event of a conflict between this EULA and the Other Agreements, the conflict shall be resolved in favor of this EULA. Accept as otherwise set out in the Other Agreements, this EULA may be changed only by a writing signed by both Parties. Neither Party is relying on any warranties, representations, assurances or inducements not expressly set forth herein. 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 EULA: (i) Section 3.2 (Contributions); (ii) Section 4 (Ownership); (iii) Section 12 (Limit of Liability); (iv) Section 14 (Your Indemnification); (v) Section 15 (Confidentiality); and (vi) Section 18 (General).
20.Support. If You have any queries regarding this EULA, you can contact us via: E-mail Address: firstname.lastname@example.org
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