End User License Agreement
By using the software (the “Software”) that is embedded in or downloaded to any tablet or other computing device used in conjunction or association with the BodiData™, Inc. handheld scanner product (the “Kora™ Handheld Scanner”), you agree to the terms of this End User License Agreement (“EULA”) between you and BodiData™, Inc. (“BodiData™”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE KORA™ HANDHELD SCANNER FOR A REFUND OF THE PURCHASE PRICE BY CONTACTING BODIDATA™ AT THE ADDRESS BELOW.
Your use of (a) the website located at www.bodidata.com and any sub-domains (each, a “Site”), (b) services through the Site (and any updates thereto) (“Site Services”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Software”) is governed by the Terms of Service on the Site. This EULA does not apply to the Kora™ Handheld Scanner. Your use of the Kora™ Handheld Scanner (excluding the Software) is governed by the BodiData™ limited warranty, the terms of which are provided with the Kora™ Handheld Scanner or, if the Kora™ Handheld Scanner is purchased commercially, the terms of which are provided by the manufacturer of such Kora™ Handheld Scanner. This EULA does not govern your use of the Site, any Site Services, or any Mobile Software, or your purchase of the Kora™ Handheld Scanner (excluding the Software).
This EULA governs your access and use of the Software. This EULA gives you specific legal rights, and you may also have other legal rights, which may vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA do not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. You REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. You FURTHER REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR STATE OF RESIDENCE TO USE OR ACCESS THE SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THIS EULA, YOU SHOULD CEASE USING THE SOFTWARE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES TO THE SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SOFTWARE.
1. License. Subject to the terms of this EULA, BodiData™ grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Software, in executable object code form only, solely on each Kora™ Handheld Scanner that you own or control, and solely for use in conjunction with the Kora™ Handheld Scanner in connection with your business. You may purchase and maintain multiple Kora™ Handheld Scanners that have the Software installed, as backups should any Kora™ Handheld Scanner cease to function properly.
2. Restrictions. You agrees not to, and you will not permit others to: (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party, (b) copy or use the Software for any purpose other than as permitted in Paragraph 1, (c) use any portion of the Software on any device or computer other than the Kora™ Handheld Scanner that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software (except to the extent that applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact BodiData™ and provide BodiData™ with an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Software to any third party without BodiData™’s prior written approval of each such release.
3. Automatic Software Updates. BodiData™ may from time to time develop patches, bug fixes, updates, upgrades and other modifications designed to improve the performance of the Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to these automatic Updates. If you do not want such Updates, your remedy is to stop using the Kora™ Handheld Scanner. If you do not cease using the Kora™ Handheld Scanner, you will receive Updates automatically. You acknowledges that you may be required to install Updates to use the Kora™ Handheld Scanner and the Software and you agree to promptly install any Updates that BodiData™ provides. Your continued use of the Kora™ Handheld Scanner is your agreement to this EULA.
4. Ownership. The Software and all worldwide patents, copyrights, trademarks, trade secrets, and other intellectual property rights therein are the exclusive property of BodiData™ and its licensors. BodiData™ and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses under this EULA. All suggestions or feedback that you provide to BodiData™ with respect to the Kora™ Handheld Scanner or the Software will automatically become the property of BodiData™. BodiData™ may use, copy, modify, publish, or redistribute any submission and its contents for any purpose and in any way without any compensation to you. You also agree that BodiData™ does not waive any rights to use similar or related ideas previously known to BodiData™, developed by its employees or agents, or obtained from other sources.
5. Term and Termination. This EULA and the license granted hereunder are effective on the date on which you first use the Software or the Kora™ Handheld Scanner and will continue in effect for as long as you use or own the Kora™ Handheld Scanner, unless this EULA is terminated under this Paragraph. BodiData™ may terminate this EULA at any time if you fail to comply with of the any terms hereof. You may terminate this EULA effective immediately upon written notice to BodiData™. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Software. Notwithstanding any provision of this EULA to the contrary, Paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 17 and 18 hereof will survive any termination of this EULA.
6. Warranty Disclaimer.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BODIDATA™ PROVIDES THE SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BODIDATA™ DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SOFTWARE. BODIDATA™ MAKES NO WARRANTY THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
(b) YOUR USE OF THE KORA™ HANDHELD SCANNER AND THE SOFTWARE WILL BE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND BODIDATA™ EXPRESSLY DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES THAT MAY RESULT FROM YOUR USE OF THE KORA™ HANDHELD SCANNER OR THE SOFTWARE.
7. Limitation of Liability. Nothing in this EULA and in particular within this "Limitation of Liability" provision will attempt to exclude liability that cannot be excluded under applicable law. IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT WILL BODIDATA™ OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE KORA™ HANDHELD SCANNER OR SOFTWARE, EVEN IF BODIDATA™ KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (b) IN NO EVENT WILL BODIDATA™’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE SOFTWARE OR THE KORA™ HANDHELD SCANNER, THE SOFTWARE OR OTHERWISE, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE GREATER OF (i) THE AGGREGATE FEES THAT YOU ACTUALLY PAID TO BODIDATA™ FOR THE KORA™ HANDHELD SCANNER IN QUESTION DURING THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM AROSE, OR (ii) $100. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
8. Confidentiality. As used herein, “Confidential Information” means the Software and all other information disclosed to you that a reasonable person would deem to be confidential or proprietary, or that BodiData™ characterizes as confidential at the time of its disclosure, either in writing or orally, except for information that you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without any use of or access to the Confidential Information. You will use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term of this EULA and for a period of at least two (2) years after any termination of this EULA. You will not disclose, disseminate or otherwise publish or communicate any Confidential Information to any person, firm, corporation or other entity without BodiData™’s prior written consent. You will not use any Confidential Information other than in the course of the activities permitted hereunder. You will notify BodiData™ in writing immediately upon discovery of any unauthorized use or disclosure of any Confidential Information or any other breach of this EULA, and will cooperate with BodiData™ in every reasonable way to regain possession of all Confidential Information and prevent any further unauthorized use. If you is legally compelled to disclose any Confidential Information, then, prior to such disclosure, you will (i) immediately notify BodiData™ in writing to allow BodiData™ an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with BodiData™ in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the disclosure and/or use of the Confidential Information. If such protection is not obtained, you will disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
9. Remedies. You acknowledge that the Software contains valuable trade secrets and proprietary information of BodiData™, that any actual or threatened breach of this EULA will constitute immediate, irreparable harm to BodiData™, for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for any such breach.
10. For U.S. Government End Users. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
11. Export Compliance. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required. You will indemnify and hold BodiData™ harmless from and against any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorney’s fees) arising from or relating to any breach by you of your obligations under this Paragraph.
12. Governing Law; Venue. This EULA will be governed by and construed in accordance with the laws of the State of Delaware, notwithstanding any conflict of law principles to the contrary. Any action which in any way involves the rights, duties and obligations of either party hereto under this EULA will be brought in the state or federal courts sitting in Wilmington, Delaware, and each of BodiData™ and we each hereby submit to the personal jurisdiction of such courts. Each of BodiData™ and we each waive any and all rights to have any dispute, claim or controversy arising out of or relating to this EULA tried before a jury.
13. Assignment. Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment will be void and without effect.
14. Notices. Any notice to you may be provided by email to the address that you registered with BodiData™.
15. Severability. If any provision of this EULA is unenforceable, that provision will be changed and interpreted to accomplish the objectives of that provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
16. Waiver. All waivers by BodiData™ will be effective only if in writing. Any waiver or failure by BodiData™ to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17. Amendments. No amendment or modification of this EULA will be valid unless it is in writing and signed by each of us.
19. General. This EULA constitutes the entire agreement between BodiData™ and you relating to the Software. The Software is deemed irrevocably accepted upon your use of the Software or the Kora™ Handheld Scanner. The parties are independent contractors. The headings of the Paragraphs of this EULA are for convenience only and are not to be used in interpreting this EULA.
Questions or Additional Information. If you have questions regarding this EULA, please contact BodiData™.
© 2018 BodiData™, Inc.
4905 34th St S, Unit 296.
St. Peterburgh FL. 33711