This End User License Agreement, (this “Agreement”), constitutes a binding agreement between Earnnest, LLC a South Carolina limited liability company (“Earnnest”, “we”, “us” or “our”) and you, the person or entity downloading, accessing and/or otherwise making use of our Application (“Licensee”, “you” or “your”). This Agreement constitutes a legally binding agreement between you and Earnnest. Accordingly, we advise you to read this Agreement carefully before downloading, accessing or otherwise making use of the Application (defined below). You and Earnnest may each be referred to herein individually as a “Party” and together as the “Parties,” as context so requires
For purposes of this Agreement, the following terms have the following meanings:
“Account” means your Earnnest user account which you must register for through the Application or Site in order to use the Service.
“Application” refers to Company’s interactive software platform which allows Users to access and use the Services and which may be downloaded from an App Store (defined in Section 14) to a User’s mobile device or which may be otherwise accessed by a User online through the Internet at our Site.
“Device” means Licensee’s personal mobile device and may include, without limitation, Licensee’s laptop, smartphone, tablet, etc.
“Documentation” means user manuals, technical manuals and any other materials provided by Earnnest, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
“Licensee” has the meaning set forth in the preamble.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Earnnest” means Earnnest, LLC a South Carolina limited liability company and has the meaning set forth in the preamble.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Site” means the Earnnest website located at www.earnnest.com.
“Service” means app.earnnest.com.
“Term” has the meaning set forth in Section 6.1.
“Third Party” means any Person other than Licensee or Earnnest.
2.2. Restrictions on Acceptance. When you download, access or otherwise make use of the Application you acknowledge and agree that:
(a) if you are accepting this Agreement on behalf of any legal entity, including any company, organization, government, or governmental agency, you have been authorized to do so and to act on behalf of such legal entity;
(b) you have read and understand all of the provisions, terms and conditions set forth herein;
(c) you will be bound by all of the provisions, terms and conditions set forth herein;
(d) you are at least eighteen (18) years of age;
(e) you have a valid United States residence and corresponding address;
(f) you have a valid deposit account at a United States financial institution; and
(g) you have not previously used the Service through an Account which Earnnest has terminated or suspended in accordance with the terms and conditions of this Agreement.
3. LICENSE GRANT AND SCOPE.
3.1. Grant of License. Subject to and conditioned upon Licensee's strict compliance with all terms and conditions set forth in this Agreement, Earnnest hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable and revocable right an license during the Term to download, install, access and use one (1) copy of the Application on Licensee’s Device.
3.2. Use Restrictions. Licensee shall not, directly or indirectly:
(a) use (including make any copies of) the Application beyond the scope of the license granted under Section 3;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Application;
(c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof;
(d) combine the Application or any part thereof with, or incorporate the Application or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Application, including any copy thereof;
(g) copy the Application, in whole or in part;
(h) 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, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; or
(i) use the Application for purposes of competitive analysis of the Application, the development of a competing software product or service or any other purpose that is to the Earnnest's commercial disadvantage.
3.3. Responsibility for Use of Application. Licensee is responsible and liable for all uses of the Application through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Application or by any other Person to whom Licensee may provide access to or use of the Application, whether such access or use is permitted by or in violation of this Agreement.
4. COLLECTION AND USE OF INFORMATION.
4.1. Licensee’s Acknowledgement. Licensee acknowledges that Earnnest may, directly or indirectly through the services of third parties, collect and store information regarding use of the Application, and Licensee hereby acknowledges and agrees that the Earnnest may use such information for any lawful purpose or any purpose related to any use Application, including but not limited to:
(a) improving the performance of the Application;
(b) as necessary to provide you with promotional and marketing materials concerning other services and products which may be of interest to you; and
(c) verifying Licensee's compliance with the terms of this Agreement and enforcing the Earnnest's rights, including all Intellectual Property Rights in and to the Application.
5. INTELLECTUAL PROPERTY RIGHTS. Licensee acknowledges and agrees that the Application is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Earnnest and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Application and all Intellectual Property Rights arising out of or relating to the Application, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard the Application (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access and Licensee shall promptly notify Earnnest if Licensee becomes aware of any unautorized access to the Application or any infringement of Earnnest's Intellectual Property Rights in the Application and fully cooperate with Earnnest in any legal action taken by Earnnest to enforce its Intellectual Property Rights.
6. TERM AND TERMINATION.
6.1. The Term. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
(a) Licensee may terminate this Agreement by ceasing to use and access the Application.
(b) Earnnest may terminate this Agreement, by providing written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after Earnnest provides notice thereof.
(c) Earnnest reserves the right to terminate the license granted hereunder for any or no reason or to discontinue, suspend, enhance, update or otherwise modify the Applications or its availability to you at any time and for any or no reason without notice..
6.3. Effect of Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using the Application.
7. NO WARRANTIES.
YOU EXPRESSLY AGREE YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION CONTENT AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EARNNEST, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT FOUND ON THE APPLICATION; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICE RECEIVED THROUGH OR ADVERTISED ON THE SITE OR ACCESSED THROUGH THE SITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION; (6) WARRANTIES THAT YOUR USE OF THE APPLICATION WILL BE SECURE OR UNINTERRUPTED; VIRUS-FREE OR ERROR-FREE AND (7) WARRANTIES THAT ERRORS IN THE APPLICATION OR SERVICE WILL BE CORRECTED.
Earnnest does not warrant or make any representations regarding availability, accuracy, reliability, completeness, or timeliness of the materials, Service, text, graphics, and or links associated with the Application. If your use of the Application or the materials, Service, text, graphics, and or links associated with the Site results in the need for servicing or replacing equipment or data, Earnnest is not responsible for those costs.
8. LIMITATION OF LIABILITY.
8.1. Exclusion of Consequential Damages.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW IN NO EVENT WILL EARNNEST OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE EARNNESTS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE EARNNEST WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Cap on Monetary Liability.
IN NO EVENT WILL EARNNEST'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE EARNNESTS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED TEN ($10) DOLLARS.
9. US GOVERNMENT RIGHTS. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Application 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 US Government licensees and their contractors.
10.1. Governing Law and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of South Carolina without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of South Carolina. Any legal suit, action or proceeding arising out of this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of South Carolina in each case located in the city of Greenville and County of Greenville and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
10.2. Force Majeure. Earnnest will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Earnnest's reasonable control.
10.3. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the [third] day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
10.5. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 10.5 is void. Earnnest may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
10.6. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
10.7. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.8. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refer to the Sections of this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
10.9. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.