Terms & Conditions
End User License Agreement
This End User License Agreement (”Agreement”) is a binding agreement between you or the corporation or legal entity on whose behalf you are acting (“End User”) and FreshLime, Inc. (”FreshLime”). This Agreement governs End User’s use of the FreshLime Platform (including all related documentation, the “Application”) on any platform on which the Application may be downloaded, installed, accessed, or used. The Application is licensed, not sold, to End User.
BY CLICKING THE “AGREE” BUTTON, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER AND THAT, IF YOU ARE ACTING ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU ARE AUTHORIZED TO ACT ON THAT CORPORATION’S/LEGAL ENTITY’S BEHALF; AND (3) ACCEPT THIS AGREEMENT AND AGREE THAT YOU OR THE CORPORATION/LEGAL ENTITY YOU REPRESENT ARE LEGALLY BOUND BY ITS TERMS. IF YOU OR THE CORPORATION OR LEGAL ENTITY YOU REPRESENT DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “AGREE” BUTTON AND DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION.
1. License Grant
Subject to the terms of this Agreement, FreshLime grants End User a limited, revocable, non-exclusive, and nontransferable license to (a) download, install, and use the Application on mobile devices owned or otherwise controlled by End User (”Mobile Devices”), and (b) access and use the web-based version of the Application via the Internet.
2. License Restrictions
End User shall not, regardless of the device or platform on or from which End User accesses or uses the Application:
i. copy the Application, except as expressly permitted by this Agreement;
ii. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
iii. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
iv. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
v. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
vi. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
3. Reservation of Rights
End User acknowledges and agrees that the Application is provided under license, and not sold, to End User. End User does not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. FreshLime reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to End User in this Agreement.
4. Collection and Use of Data
End User acknowledges and agrees that FreshLime will gather, collect, store, and use PII and other data that End User provides through the Application (“App Customer Data”). End User also hereby authorizes FreshLime to gather, collect, store, and use Customer’s owned or controlled PII and other data from End User’s third party Customer Relationship Management (“CRM”) services (“CRM Customer Data” and together with App Customer Data, the “Customer Data”). FreshLime will not be liable nor responsible for any delays in providing, or inability to provide, the reports, functionality or other services through the Application, that are a result of FreshLime’s inability to receive the CRM Customer Data from third party CRM services. End User represents and warrants that (i) it has the right to gather, collect, store and use the Customer Data; (ii) it has the right to transmit the Customer Data to FreshLime for FreshLime’s use pursuant to this Agreement; and (iii) it has complied with all applicable laws regarding the collection and sale of PII, including, but not limited to, the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) (the “CCPA”). “PII” means (i) all information specific to an individual’s identity enabling the individual to be identified, directly or indirectly, including, but not limited to an individual’s first and last name, email, identification numbers, social security number, driver’s license number, bank account numbers, compensation, benefits, tax, marital/family status; (ii) “personal data,” “personal information,” or “personally identifiable information,” and similar expressions, as those terms are defined under local, state, national, or international laws, statutes, orders, or regulations relating to the processing, protection, safeguarding, sharing, duplication, handling, or destruction of personal data, including, but not limited to, the CCPA; and (iii) any other information of or relating to an individual that is protected from disclosure by, or is the subject of data breach protections set forth in applicable laws.
Furthermore, End User acknowledges that when End User downloads, installs, or uses the Application, FreshLime may use automatic means (including, for example, cookies and web beacons) to collect information about the computers, devices, Mobile Devices, and other hardware used to access or utilize the Application, and about End User’s use of the Application. End User also may be required to provide certain information about itself as a condition to downloading, installing, or using the Application or certain of its features or functionality.
5. Archival of Collected Data
Upon termination or expiration of this Agreement for any reason, FreshLime may retain copies of all data collected under this Agreement, including, but not limited to Customer Data, for archival and recordkeeping purposes.
FreshLime may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. End User agrees that FreshLime has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. End User shall promptly download and install all Updates and acknowledges and agrees that the Application or portions thereof may not properly operate should End User fail to do so. End User further agrees that all Updates will be deemed part of the Application and be subject to this Agreement’s terms and conditions.
7. Term and Termination
i. The term of Agreement commences when End User acknowledges its acceptance and will continue in effect until terminated by End User or FreshLime as set forth in this Section 7.
ii. FreshLime may terminate this Agreement at any time without notice if it ceases to support the Application, which FreshLime may do in its sole discretion. In addition, either party can terminate this Agreement if the other party material breaches this Agreement and does not cure its breach within thirty (30) days of receiving written notice from the non-breaching party; such termination shall be in addition to any other rights the non-breaching party has under law or equity.
iii. Upon termination:
a. all rights granted to End User under this Agreement will also terminate; and
b. End User must cease all use of the Application and delete all copies of the Application from End User’s computers, devices, Mobile Device(s), hardware, and account.
iv. Termination will not limit any of FreshLime’s rights or remedies at law or in equity.
8. Disclaimer of Warranties
THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FRESHLIME, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, FRESHLIME PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET END USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FRESHLIME OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO END USER’S USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:i. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.ii. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY END USER FOR THE APPLICATION.THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR FRESHLIME WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
End User agrees to indemnify, defend, and hold harmless FreshLime and its officers, directors, employees, agents, affiliates, successors, and assigns 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, arising from or relating to End User’s breach of this Agreement, including its representations and warranties hereunder.
11. Export Regulation
The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. End User shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. End User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
12. US Government Rights
The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if End User is an agency of the US Government or any contractor therefor, End User receives only those rights with respect to the Application as are granted to all other end users under license, in accordance with (i) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
14. Governing Law
This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in Salt Lake County. End User waives any and all objections to the exercise of jurisdiction over End User by such courts and to venue in such courts.
15. Timely Actions
ANY CAUSE OF ACTION OR CLAIM END USER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. Entire Agreement
This Agreement constitutes the entire agreement between End User and FreshLime with respect to the Application and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
End User grants FreshLime a non-exclusive, worldwide, royalty free right to include the End User’s name, trade name(s), logos, trademarks, symbols, and other identifying indicia in any advertising, promotion, press/publicity release, written article, customer listing, brochure, flier, presentation, report, written disclosure, and any other marketing materials or customer lists.
18. No Partnership
This Agreement shall not be interpreted or construed to create an association, joint venture, agency relationship, employer-employee relationship, or partnership between the parties or to impose any partnership obligation or partnership liability upon either party. Neither party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other party.
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party hereto (whether by operation of law or otherwise) without the other party’s prior written consent. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
21. Attorneys’ Fees
If (i) a party to this Agreement files a lawsuit against the other party in a court of competent jurisdiction to enforce rights under this Agreement, and (ii) the court issues a final, nonappealable order or decision, the prevailing party shall be entitled to recover costs and expenses, including but not limited to reasonable attorneys’ fees, it incurred as a result of the other party’s breach of this Agreement.