END USER LICENSE AGREEMENT (EULA)
IMPORTANT – READ BEFORE COPYING, INSTALLING OR USING.
Do not use or load this Software and any associated materials (collectively, the “Software”) until you have carefully read the following terms and conditions. By loading or using the Software, You agree to the terms of this EULA. If you do not agree, do not install or use the Software.
WARNING: This computer program is protected by copyright law and international treatises. Unauthorized reproduction or distribution of this program, or any portion of it, may result in severe civil and criminal penalties, and will be prosected to the maximum extent possible under the law.
This EULA highlights some of the terms and conditions of the Customer Use and License Agreement between You (either an individual or a single entity) and iHigh.com, Inc. (“iHigh.com”).
“You” or “your” as used herein means the person, company, or entity who is being licensed to use the Software Product, as defined below.
“Software” or “Software Product” as used herein means all computer programs and related documentation related to the Production TruckTM System.
COPYRIGHT. Title and ownership rights to Software Products, including copyrights, mask work rights, patents, trademarks, trade secrets, and other intellectual property rights, as well as all copies thereof reside and shall remain in iHigh.com. The Software Products embody the proprietary and trade secret information of iHigh.com, who owns the copyrights therein.
(a) You shall not, at any time (i) copy, reverse engineer, disassemble the source or object code used in, or in any other fashion attempt to exploit the Software Products and associated Online Services in any way or for any purpose except as is necessary to make an archival copy of the Software Products, or (ii) insert or make use of any type of disabling device including, but not limited to, viruses, worms, Trojan horses, time bombs, cancelbots or any similar device that may impair, damage or interfere with the proper working order of the Production TruckTM System and associated Online Services, and You shall not permit any party to do so. All copies of the Software Products made by You shall bear the proprietary markings (be they patent, copyright or trade secret) of iHigh.com borne by the copies transmitted by iHigh.com or third party to You and in the same form and location as the original.
(b) You acknowledge that the Software Products and associated Online Services are composed of confidential data and trade secrets that are the sole and exclusive property of iHigh.com. You shall not allow others to use or have access to the Software Products and associated Online Services, either directly or indirectly, and shall not make or allow others to make copies or reproductions of the Software Products in any form without the prior written consent of iHigh.com.
(c) You shall maintain the confidentiality of the Software Products so as to prevent unauthorized disclosure or copying. You shall notify iHigh.com of any unauthorized use, copying, or disclosure of the Software Products known to You. iHigh.com may terminate the Agreement for breach of any provision of this Section if You have not cured such breach to the satisfaction of iHigh.com within ten days after receipt of written notice describing the breach. This right of termination shall not preclude iHigh.com from recovering against You any damages iHigh.com may suffer as a result of such breach or from any legal and/or equitable remedies.
OWNERSHIP. The Software Products and associated Online Services, and any later improvements, upgrades, or repairs thereto, constitute proprietary property of iHigh.com and shall be considered on loan to You during the term of your license. In addition, all intellectual property rights, including but not limited to, patent, copyright, trademark and trade secret rights, embodied in the Software Products, Online Services and/or Documentation are the proprietary property of iHigh.com. In the event that You contribute in any degree to such improvements, upgrades, or repairs, You agree to assign, and hereby do assign, the intellectual property rights embodied therein to iHigh.com.
DISCLAIMER OF WARRANTY. THE SOFTWARE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU ACCEPT ALL RISK AS TO THE PERFORMANCE OF THE SOFTWARE. IHIGH.COM SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT, AND EVEN IF IHIGH.COM HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. Regardless of the cause of loss, iHigh.com shall not in any way be liable therefor. Any action arising out of or related to this EULA against iHigh.com, must be commenced within one (1) year from the date the right, claim, demand or cause of action shall first occur, or be barred forever.
LIMITATION OF LIABILITY. IHIGH.COM’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS EULA SHALL NOT EXCEED TEN DOLLARS (US$10.00).
ELECTRONIC DATA AND ELECTRONIC CONTENT.
(a) “Electronic Data” shall mean all personal information regardless of form that You have entered or transferred or provided to iHigh.com through the Production TruckTM System. Electronic Data shall include, but is not limited to, email addresses, passwords, social security numbers, personal addresses, personal telephone numbers, credit card numbers, and/or other personal information received from You by iHigh.com, Inc.
(b) Ownership of Electronic Data. Any and all Electronic Data entered or transferred to iHigh.com by You shall be owned by You. iHigh.com shall not divulge such Electronic Data to any third party, unless the third party is a subcontractor of iHigh.com of whom iHigh.com has delegated the performance of some or all of its duties under this Agreement. iHigh.com may disclose the Electronic Data if required to be disclosed by law or order of a court or government agency.
(c) “Electronic Content” shall mean all non-personal information regardless of form that You have entered or transferred or provided to iHigh.com through the Production TruckTM System. Electronic Content shall include, but is not limited to, audio, video, imagery, metadata, and/or other content received from You by iHigh.com, Inc.
(d) Ownership of Electronic Content. By entering or transferring the Electronic Content to iHigh.com, You represent and warrant that You own or have the necessary licenses, rights, consents, and permissions to publish said Electronic Content; and you hereby grant to iHigh.com a perpetual, non-exclusive, royalty-free license to all patent, trademark, trade secret, copyright, and/or other proprietary rights in and to said Electronic Content for publication or other use at iHigh.com’s sole discretion.
(e) IHIGH.COM SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OF THE ELECTRONIC DATA OR THE ELECTRONIC CONTENT.
INDEMNITY. To the extent permitted by applicable law, you agree to defend, indemnify, and hold harmless iHigh.com, its officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Production TruckTM System; (b) your violation of any term of this EULA; (c) your violation of any third party right, including without limitation any patent, trademark, copyright, trade secret, property, or privacy right; or (d) any claim that the Electronic Content caused damage to a third party. This defense and indemnification obligation will survive this EULA and your use of the Production TruckTM System.
DOWN TIME AND BACKUP. iHigh.com is providing a license for the use of its Production TruckTM System. iHigh.com is not liable for any application problem whatsoever that might result in down time or non-usability of the licensed Production TruckTM System. iHigh.com recommends that You routinely back up the Electronic Data and Electronic Content and iHigh.com will not be held responsible for any lost data or content accordingly.
GOVERNMENT RIGHTS. If used or acquired by the United States Government, the Government acknowledges that (a) the Software Products constitute “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable and (b) the Government’s rights are limited to those specifically granted pursuant to this EULA.
EXPORT/IMPORT/RE-EXPORT. You acknowledge that the export and use of certain hardware, software, and technical data provided hereunder is regulated by the United States and other governments and agree to comply with all applicable laws and regulations. You agree not to export or re-export directly or indirectly any equipment, software, software releases or related technical data or information without first obtaining any required license(s) or governmental approvals.
GOVERNING LAW. This EULA shall be governed by, and construed and enforced in accordance with, the laws of the State of Kentucky, without giving effect to the principles of conflict of laws thereof.
COMPLIANCE WITH LAWS. You shall, at your own expense, use the Production TruckTM System in a careful and proper manner and shall comply with and conform to all laws, ordinances and regulations in any way relating to your possession, use and/or maintenance of the Production TruckTM System, Electronic Data, and Electronic Content. You shall comply in all respects with the European Union Member State Data Protection Act (the “DPA”), if applicable, and all subordinate legislation made pursuant thereto including all applicable amendments, revisions and re-enactments (as defined in the DPA). Use of the Production TruckTM System is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section.
CONFIDENTIALITY. “Confidential Information” shall mean (a) this Agreement and any Software Products, intellectual property, know-how, show how, technical data, specifications, product capabilities, instructions, manuals, guides, systems, processes, designs, methods, practices, trade secrets, software, firmware, devices, diagrams, drawings, notes, sketches, videos, sales and technical bulletins, and all copies and electronic files thereof, and (b) all other information, whether or not reduced to writing, relating to the design, creation, use, marketing, license, support and service related to the Production TruckTM System, Software Products and associated Online Services, as well as any other information relating to the business of iHigh.com that may be divulged to You that is not generally known in the trade and is confidential and/or proprietary to iHigh.com. No information or materials shall qualify as Confidential Information if they (a) are or become, through no fault of You, available to the public, (b) are obtained by You from a third party without breach of any agreement with, or obligation of confidentiality to, iHigh.com, or (c) are required by law or a court or government agency to be disclosed.
You shall take all precautions to maintain the strict confidentiality of the Confidential Information, except to the extent (a) iHigh.com authorizes You in advance and in writing to disclose them; or (b) the Confidential Information have become non-confidential in accordance with the provisions contained in the definition of Confidential Information of this Agreement.
The Confidential Information, including copies thereof, shall at all times remain the property of iHigh.com or its licensors, if applicable. Upon termination of the license agreement, You shall promptly return to iHigh.com or, at its request, will destroy all Confidential Information furnished to You.
DEVELOPMENT OF IMPROVEMENTS. In the event You develop or improve the Production TruckTM System and associated Online Services or related methods or know-how (“Improvement(s)”), the You promptly shall fully-disclose and make the Improvement(s) immediately available to iHigh.com. iHigh.com shall exclusively own all Improvements. You shall have a non-exclusive, fully-paid up, royalty free, world-wide, perpetual, non-transferable license to such Improvements. At iHigh.com’s expense, You shall sign and complete such assignments, agreements or other documents and shall take all actions as shall be necessary to confer upon iHigh.com, and to register in iHigh.com's name, the sole ownership of Improvement(s) worldwide, as determined in iHigh.com discretion.