This Agreement governs your relationship with mPortal, Inc. (“mPortal”) with regard to any mPortal software applications (“mPortal Applications”) you may be able to install, access and/or use (collectively “use”) through your wireless communication carrier (“carrier”). This is an important agreement, and you should read it carefully and understand it.
IF YOU USE ANY mPORTAL APPLICATIONS YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS SET FORTH IN THIS AGREEMENT. IF YOU ARE NOT WILLING TO AGREE TO THESE TERMS DO NOT USE ANY mPORTAL APPLICATIONS.
1. Grant of Limited License. mPortal hereby grants you a non-exclusive, limited license to use the object code version of any mPortal Application made available to you through your carrier in conjunction with only one wireless communication device (“device”). The term mPortal Applications includes any upgrades, enhancements and other changes to any mPortal Application unless these are accompanied by a separate license agreement, in which event such license agreement shall govern. All rights not expressly granted are reserved by mPortal.
2. Ownership. You agree that mPortal and any third parties that may have granted rights to mPortal that are included in any mPortal Application retain all right, title and interest in and to all versions of such mPortal Applications, all copies thereof, all copyrights therein and all other proprietary rights thereto. You agree to erase any mPortal Applications from your device upon receipt of notice and not to keep any copy thereof.
3. Prohibitions. You agree not to: (i) reproduce, modify or distribute any mPortal Application; (ii) subject to applicable law, decompile or reverse engineer any mPortal Application, or attempt any of such actions; (iii) remove any copyright, logo, trademark or other proprietary notice from any mPortal Application, or (iv) sublicense or transfer any mPortal Application to a third party.
4. Termination; Remedies. Your rights under this Agreement shall terminate immediately and without notice if you fail to comply with any term of this Agreement, however mPortal’s rights under this Agreement shall continue. Upon termination you agree to immediately erase all mPortal Applications from your device. Unless otherwise restricted by applicable law, mPortal shall be entitled to recover all costs, including reasonable attorneys’ fees, incurred in enforcing its rights under this Agreement, whether or not suit shall be required.
5. Disclaimer of Warranty. ANY mPORTAL APPLICATION IS LICENSED TO YOU “AS IS.” mPORTAL DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE mPORTAL APPLICATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. mPORTAL DOES NOT WARRANT THAT THE OPERATION OF mPORTAL APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT: (A) SHALL mPORTAL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE mPORTAL APPLICATIONS (INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS), EVEN IF mPORTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; AND (B) WILL mPORTAL’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEE PAID BY YOU WITH RESPECT TO THE mPORTAL APPLICATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
7. Export. The mPortal Applications are subject to the export control laws and regulations of the United States and other jurisdictions, and you agree to comply with all such laws and regulations.
8. Notice to U.S. Government End Users. If you are, or are acting on behalf of, an agency or instrumentality of the United States Government, each mPortal Application is a “commercial item” as that term is defined in 48 C.F.R. 2.101, developed exclusively at private expense and consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Pursuant to 48 C.F.R. 27.405(b)(2), FAR 12.212 or DFARS 227 7202 and any successor provisions, as applicable, use, reproduction and disclosure of the mPortal Applications is governed by the terms of this Agreement.
9. Changes to this Agreement. This Agreement supersedes all previous versions of this document that may have existed. This Agreement may hereafter be modified and/or superseded by a subsequent Agreement posted by mPortal on its website from time to time, and you should check the current version of this Agreement from time to time to be sure that you understand the terms of this Agreement in effect.
10. Miscellaneous. This Agreement is governed by the laws of the State of Virginia, USA, including Virginia statutes and Virginia common law relating to written agreements, but excluding Virginia conflict of law principles. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this Agreement. The parties hereby expressly agree to opt out of application of the Virginia Uniform Computer Information Transactions Act.
If any provision hereof is held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement constitutes the entire agreement between you and mPortal regarding its subject matter and supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. Except as provided in Section 9, this Agreement may only be modified, and any waiver of any provision of this Agreement shall only be effective when, in writing and executed by you and a duly authorized officer of mPortal.