Mobile App End User License Agreement
This Mobile App End User License Agreement (“EULA”) is a binding agreement between you (“End User” or “you”) and Lucit LLC (“Lucit”, “we” or “us”). This EULA governs your use of the Lucit mobile app (including all related documentation, the “App”). The App is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON OR INSTALLING THE APP, YOU ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS EULA, IN WHICH CASE THE TERMS “END USER” OR “YOU” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES AS WELL AS YOU PERSONALLY.
IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY REFERRED TO ABOVE, DO NOT INSTALL OR USE THE APP, AND DELETE IT FROM YOUR DEVICE.
- License Grant. Subject to the terms of this EULA, Lucit grants you a limited, non-exclusive and nontransferable license to:
- Download and install the App on any mobile device or desktop PC owned or otherwise controlled by you (“Device”) strictly in accordance with the App’s documentation;
- Use the App on said Device(s) to create and manage digital advertising campaigns for display on digital OOH screens (“Services”), which digital OOH screens are owned and operated by a separate company (“Operator”), with whom you have separately contracted for the display of such screens; and
- Use the App and Services to access and use content provided by Lucit (“Lucit Content”).
- Acknowledgment. You acknowledge and agree that:
- Your right to use the App to access the Services, and to use the Services and Lucit Content to create and manage digital advertising campaigns for display on digital OOH screens, is subject to your purchase of such rights from the applicable Operator;
- YOUR ACCESS TO AND USE OF THE APP, LUCIT CONTENT AND SERVICES IS SUBJECT TO PROMPT PAYMENT TO LUCIT BY THE OPERATOR;
- LUCIT HAS THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE APP, LUCIT CONTENT OR SERVICES, AND TO TERMINATE THIS EULA, WITH OR WITHOUT NOTICE, IN THE EVENT OF ANY BREACH BY YOU OF THIS EULA OR BREACH BY THE OPERATOR OF THE APPLICABLE SERVICES AGREEMENT BETWEEN THE OPERATOR AND LUCIT, INCLUDING BUT NOT LIMITED TO THE FAILURE TO PAY ANY AMOUNTS OWED TO LUCIT;
- IN THE EVENT OF ANY DISPUTE OR CLAIM OF ANY NATURE RELATING IN ANY WAY TO THE APP, LUCIT CONTENT OR SERVICES, YOU WILL LOOK SOLELY TO THE OPERATOR AND NOT LUCIT FOR ANY REMEDY OF ANY NATURE TO WHICH YOU BELIEVE YOU MAY BE ENTITLED; and
- End User Control and Responsibility.
- End User has and will retain sole responsibility for: (i) the submission, content and use of all “End User Content”, which means data or content, other than Lucit Content, provided by or for End User, including any Third Party Materials as defined in Section 9 below; (ii) End User’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by End User or through the use of third-party services (“End User Systems”); (iii) the security and use of End User’s user name, password and any other login information (“Access Credentials”); and (iv) all access to and use of the App, Lucit Content or Services directly or indirectly by or through the End User Systems or End User’s Access Credentials, with or without End User’s knowledge or consent.
- Lucit may immediately and without notice remove or disable access to any End User Content that Lucit determines in its sole discretion is in violation of this EULA and, upon notice from Lucit, End User will promptly remove, and cease any further display or other use of, any such End User Content. End User hereby irrevocably grants to Lucit all rights and permissions in or relating to End User Content as are necessary or useful to enable Lucit to perform the Services, enforce this EULA, and otherwise exercise its rights under this EULA.
- Access and Security. End User will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the App or Services; and (b) control the content and use of End User Content, including the uploading or other provision of End User Content for processing by the Services.
- License Restrictions. Except as may be expressly permitted in this EULA or in a separate written agreement with Lucit, you will not engage in any of the following, or permit any other person to do so:
- use, copy, sell, distribute, post, display, transmit, broadcast or disclose all or any part of the App, Lucit Content or Services;
- modify, translate or adapt the App, Lucit Content or Services, or any part thereof;
- create or attempt to create compilations or derivative works based on the App, Lucit Content or Services, in whole or in part;
- demonstrate, engage in screen scraping, reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code, object code, system design, underlying structure, ideas or algorithms of the App, Lucit Content or Services, or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the App, Lucit Content or Services or any part thereof, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App, Lucit Content or Services, or any features or functionality thereof, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; using the App or Services for any outsourcing, time-sharing, service bureau, data processing, software-as-a-service, cloud hosting or similar arrangement; or using the App or Services for any other purpose other than your internal benefit;
- access or use any part of the App, Lucit Content or Services to create a competing product or service of any nature, to benchmark with a product or service other than Lucit’s, or for any other purpose that is to Lucit’s detriment or commercial disadvantage;
- input, upload, transmit or otherwise provide to or through the App or Services any virus, worm, Trojan horse, disabling device, time bomb or other technology manifesting any contaminating, damaging or disruptive properties;
- use the App, Lucit Content or Services other than in accordance with this EULA and in compliance with all applicable laws and regulations, including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the App, Lucit Content or Services, or any part thereof.
The parties agree that the foregoing restrictions are to be applied to the maximum extent permitted by law. You further agree that, if you believe that reverse engineering or any similar activity is permitted under applicable law, you will so advise Lucit at least 30 days before engaging in any such activity or permitting any other person to do so.
- Reservation of Rights. You acknowledge and agree that your right to access and use the App, Lucit Content and Services is provided under license, and not sold, to you. You do not acquire any ownership interest in the App, Lucit Content or Services under this EULA, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions and restrictions, under this EULA. Lucit reserves and will retain its entire right, title and interest in and to the App, Lucit Content and Services including all copyrights, trademarks and other intellectual property rights embodied therein or relating thereto.
- Updates. Lucit may from time to time in its sole discretion develop and provide App 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. You agree that Lucit has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the Internet either:
- the App will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You will promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this EULA.
- Third-Party Materials. You acknowledge and agree that you may use the App or Services to access information from third-party service providers (“Third-Party Materials”), in order to populate and use templates to create digital billboard displays. You hereby grant Lucit permission to access and use End User Content, including but not limited to Third-Party Materials, as needed to provide the Services. You acknowledge and agree that Lucit is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Lucit does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials, and any access to and use of Third-Party Materials is entirely at your own risk and subject to such third parties’ terms and conditions. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
- Term and Termination.
- The term of this EULA commences when you download or install the App and will continue in effect until terminated by you or Lucit as set forth in this Section 10.
- You may terminate this EULA by deleting the App and all copies thereof from all Devices on which it has been installed.
- In addition to Lucit’s right to terminate this EULA as set forth in Section 2 above (Acknowledgment), this EULA will terminate at any time without notice if Lucit ceases to support the App, which Lucit may do in its sole discretion.
- Upon termination:
- all rights granted to you under this EULA will terminate; and
- you must cease all use of the App and delete all copies of the App from all Devices and accounts.
- Termination will not limit any of Lucit’s rights or remedies at law or in equity.
- Disclaimer of Warranties.
- THE APP, LUCIT CONTENT AND SERVICES ARE 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, LUCIT, 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 APP, LUCIT CONTENT OR SERVICES, 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, LUCIT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED; OR THAT THE APP, LUCIT CONTENT OR SERVICES: (i) WILL NOT BE HACKED; (ii) WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; (iii) WILL MEET YOUR REQUIREMENTS; (iv) WILL ACHIEVE ANY INTENDED RESULTS; (v) WILL BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPS, SYSTEMS OR SERVICES; (vi) WILL OPERATE WITHOUT INTERRUPTION; OR (vii) WILL MEET ANY PERFORMANCE OR RELIABILITY STANDARDS.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LUCIT OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP, LUCIT CONTENT OR SERVICES FOR:
- 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; OR
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SPECIFIC SERVICES FROM WHICH THE CLAIM ARISES.
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 LUCIT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PARTIES ACKNOWLEDGE THAT THIS SECTION 12 HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR LUCIT TO ENTER INTO THIS EULA AND THAT LUCIT WOULD NOT HAVE ENTERED INTO THIS EULA BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend and hold harmless Lucit 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 reasonable attorneys’ fees, arising from or relating to your use or misuse of the App or Services, or your breach of this EULA.
- Export Regulation. The App may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. You will not, directly or indirectly, export, re-export or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You will 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 App available outside the U.S.
- U.S. Government Rights. The App is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
- Severability. If any provision of this EULA is determined to be invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed in order to effectuate the purpose and intent of this EULA. The invalidity or unenforceability of any provision of this EULA in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction. In the event that any court of competent jurisdiction determines that any provision of this EULA is unreasonable or otherwise unenforceable for any reason, then it is the intention of the parties that such provision will be enforced to the fullest extent that the court deems reasonable, and the EULA will thereby be reformed.
- Governing Law. This EULA will be governed by and construed in accordance with the laws of the State of North Dakota, excluding its conflict of laws rules. The exclusive forum and venue for any action between the parties will be the federal and state courts located in Burleigh County, North Dakota. You hereby consent to accept the jurisdiction of said courts, waive any objection to personal jurisdiction or venue, or based on forum non conveniens, and agree to accept service of process by mail.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA, THE APP, THE LUCIT CONTENT OR THE SERVICES MUST BE COMMENCED WITHIN 365 DAYS AFTER THE CAUSE OF ACTION ACCRUES OR OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No amendment, modification, termination or waiver of any provision of this EULA will be effective unless the same will be in writing and signed by a duly authorized representative of each party. No failure or delay on the part of Lucit in exercising any right, power or remedy hereunder will operate as a waiver thereof.
- Survival. Those provisions of this EULA that by their terms, sense or nature survive any termination of this EULA will so survive in accordance with their terms.
- Notification of Copyright Infringement.
- It is our policy to fully comply with the Digital Millennium Copyright Act (the “DMCA”) and applicable regulations. Although we assume no obligation to police content or screens published, displayed or generated using the App or Services for the presence of materials that may be infringing or are otherwise inappropriate, we reserve the right in our sole discretion to remove or disable access to any content, and we will terminate the account of a repeat infringer in appropriate circumstances. A copyright owner or representative thereof may report alleged copyright infringement by sending a notice that complies with the DMCA to our designated agent to receive notification of claimed infringement (the “Designated Agent”) at the following address:
314 E. Thayer Ave, Suite 220
Bismarck, ND 58501
- We reserve the right to change our Designated Agent without prior notice, subject to the applicable requirements of the DMCA and any applicable regulations.
- All notices of alleged copyright infringement should include substantially the following:
- A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that site.
- A description of the material that the copyright owner claims to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact the copyright owner (or representative thereof), such as an address, telephone number and, if available, an electronic mail address.
- A statement that the copyright owner (or representative thereof) has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the owner’s agent, or by law.
- A statement, signed by physical or electronic signature, that the information in the notification is accurate and, under penalty of perjury, that the copyright owner is, or the representative thereof is authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed.
- Our Designated Agent may request additional information from the copyright owner (or representative thereof).
- PURSUANT TO THE DMCA, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MAKES A MATERIAL MISREPRESENTATION THAT MATERIAL IS INFRINGING, OR THAT MATERIAL WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION, MAY BE LIABLE FOR ANY DAMAGES, INCLUDING COSTS AND ATTORNEYS’ FEES, INCURRED BY A SERVICE PROVIDER WHO IS INJURED BY SUCH MISREPRESENTATION, OR BY THE COPYRIGHT OWNER OR LICENSEE, AS THE RESULT OF THE SERVICE PROVIDER RELYING UPON SUCH MISREPRESENTATION IN REMOVING OR DISABLING ACCESS TO SUCH MATERIAL, OR IN REPLACING OR CEASING TO DISABLE ACCESS TO THE MATERIAL.
- For a full description of your rights under the DMCA and the procedures that must be followed, please see the full text of the DMCA, which may be found at www.copyright.gov. Nothing in this EULA is intended to supplant the requirements of the DMCA. In the event of any conflict between any provision of this EULA and the DMCA, the applicable provision of the DMCA will control.
- All notices of alleged copyright infringement should include substantially the following: