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Please read all of the following terms and conditions of this End User License Agreement (“EULA”) carefully before using the OMS App. This EULA is a legally binding contract between you and Mega-Power, Inc. doing business as MPINarada that sets forth the terms and conditions that govern your use of the OMS App (defined below) in connection with the OMS System (defined below).
By using the OMS App or accessing any content or functionality therein, you agree to abide by all of the terms and conditions in this EULA. If you do not agree to abide by these terms and conditions, do not click “Agree” or similar button and do not install or use the OMS App.
Definitions. “MPINarada” means Mega-Power, Inc. and its subsidiaries. Terms such as “we,” “our,” or “us” refer to MPINarada. “OMS System” means services and software provided under the OMS™ brand that provide for battery management and other functions. “OMS System” includes the “OMS Platform,” which comprises cloud services together with a dedicated OMS Portal (the “OMS Portal”) on the web and one or more OMS mobile device applications.
“OMS App” means the particular OMS mobile device application that you have downloaded in connection with this EULA for access to and use of the OMS System. “Services” means those services provided by means of the OMS System.
“Customer” means the particular company or entity: (a) that is an OMS licensee in good standing under a Customer Agreement currently in force with MPINarada and (b) that has authorized you to access and use the OMS System. “Customer Agreement” refers to a valid MPINarada license agreement with the Customer, governing access to and use of the OMS System. The terms “you,” “your,” and the like refer to you as an individual user of the OMS System, by means of the OMS App, solely in your capacity as an authorized employee, agent or subcontractor of the Customer.
Introduction. Once installed and properly configured on your mobile device, the OMS App is intended to enable you to use your mobile device to access Services as permitted by the Customer Agreement. Your use of the OMS App and Services is limited to use for the Customer and is subject to and limited by the terms of the Customer Agreement. You represent that you have been duly authorized by the Customer to use the OMS System under a valid Customer Agreement. You agree to use the OMS App only in accordance with this EULA and solely for the Customer’s business purpose.
License Grant. Subject to the terms set forth in this EULA, MPINarada grants you a nonexclusive, non-transferable, non-sublicensable, revocable, limited right to install and run the OMS App on your mobile device solely in connection with your use of the OMS System as authorized by the Customer. You are not permitted to use the OMS App for any other purpose. MPINarada may audit your use of the OMS App and may determinate if you are so authorized.
Data Collection and Privacy. The OMS System may collect information about your use of the OMS App, including information you provide directly or through automated means, such as geolocation, OMS App usage, time stamp, your mobile device operating system and device identification, login credentials, and other information as outlined in the applicable MPINarada OMS Privacy Statement in effect from time to time, as available at www.mpinarada.com. MPINarada may use such information for purposes specified in the applicable MPINarada OMS Privacy Statement. You consent to such use.
Ownership and Restrictions. MPINarada or its licensors retain all ownership and intellectual property rights in the OMS App. You may not, unless you have MPINarada’s express prior written consent:
Disclaimer of Warranties and Exclusive Remedies. MPINARADA HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE OMS APP OR THE OMS SYSTEM, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND QUALITY OF SERVICE. MPINARADA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE RESULTS YOU MAY OBTAIN BY USING THE OMS APP. MPINARADA MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE OMS APP OR OMS SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL BE FULLY SECURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MPINARADA DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE OMS APP OR THE OMS SYSTEM WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF ANY SERVICES, OR INFORMATION YOU OBTAIN THROUGH THE OMS APP WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT MPINARADA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE OMS APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS. MPINARADA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH OCCURRENCES. THE OMS APP IS PROVIDED TO YOU ON AN “AS IS” AND “WITHOUT WARRANTY” BASIS.
IN NO EVENT WILL MPINARADA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS OPPORTUNITY, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, EVEN IF MPINARADA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
No Technical Support. You acknowledge that MPINarada does not have any obligation under this EULA to furnish technical support or maintenance for the OMS App. The Customer may seek such support and maintenance services as may be available under the Customer Agreement directly from MPINarada.
Termination. Your license to use the OMS App will automatically terminate upon the earlier of (a) the expiration, termination or suspension of the relevant Customer Agreement, (b) your breach of the terms of this EULA, or (c) the expiration, termination or suspension of your status as an authorized user of the OMS System. MPINarada may terminate this EULA upon written notice. MPINarada reserves the right to suspend your use of the OMS App and/or your access to the OMS System for any reason that we deem sufficient. You may terminate this EULA by uninstalling and deleting all copies of the OMS App.
Your right to use the OMS App shall end immediately upon termination of this EULA. In case of any termination, you agree to uninstall and delete all copies of the OMS App without delay. Except as expressly set forth in the Customer Agreement, the terms and conditions of the Customer Agreement are not affected by the termination of your right to use the OMS App under this EULA. The provisions of this EULA that by their nature continue shall survive any expiration or termination of this EULA.
Relationship Between the Parties. The relationship between you and MPINarada is that of licensee and licensor. No ownership rights are granted to you by this EULA.
Jurisdiction and Venue. This EULA is governed by and construed according to the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles. Any claim, lawsuit or legal proceeding arising under or relating to this EULA or its subject matter must be commenced solely in the federal or state courts located in Boston within the Commonwealth of Massachusetts, which courts will have sole and exclusive jurisdiction over and venue for such actions and proceedings. You and MPINarada hereby irrevocably consent to exclusive personal jurisdiction and venue by such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this EULA or its subject matter.
Changes to this EULA. MPINarada reserves the right to update this EULA at any time. Changes are prospective only and will not apply retroactively to your use of the OMS App. The most recent version will be available on our website. Use of the OMS App after the posting of such change constitutes your acceptance of those changes upon the date that they take effect.
Export Restrictions. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the OMS App. You agree that such export control laws govern your use of the OMS App (including technical data) and you agree to comply with all such export laws and regulations.
Entire Agreement; Miscellaneous. You agree that this EULA is the complete agreement pertaining to the subject matter hereof (including references to information contained in a URL or any referenced policy or statement). Except for the Customer Agreement, this EULA supersedes all prior or contemporaneous written or oral agreements or representations existing between you and MPINarada with respect to such subject matter.
You acknowledge that the terms of this EULA (including the license for the OMS App) are separate from the terms governing the OMS System under the Customer Agreement and that this EULA does not include the grant of any right to access the OMS System; such access or use license, if any, are solely under the applicable Customer Agreement. If any term of this EULA is found to be invalid or unenforceable, the remaining provisions will remain effective. MPINarada’s failure to enforce any right or provisions in this EULA will not constitute a waiver of such provision or any other provision of this EULA.
You agree to receipt of notice by electronic means. Notice will be deemed valid if sent to the email address that you have supplied to us. You agree to the use of the English language in notices with regard to this EULA and its subject matter.
CONTACT INFORMATION: For any questions, complaints, claims or notice to MPINarada with respect to the OMS App or this EULA, please contact MPINarada at support.oms@mpinarada.com.
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