End User License Agreement (EULA)

YourSix End User License Agreement

This End User License Agreement (this “Agreement”), is a binding agreement you (“End User” or “you”) and YourSix Inc. (“YourSix”).

YOURSIX PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY SIGNING THIS AGREEMENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF THE END USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE END USER AND BIND THE END USER TO ITS TERMS.

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

Application”” means the YourSix application available in the iOS and Android app stores.

Authorized Users” means solely those individuals authorized to use the Software pursuant to the License granted under this Agreement by the Order Form.

Documentation” means user manuals, technical manuals, training materials, API documentation and any other materials provided by YourSix, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

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.

Order Form” means the order submitted by or on behalf of End User, and accepted by YourSix, for End User’s purchase of the License for the Software granted under this Agreement.

Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

Software” means the YourSix platform, including the Application.

Third Party” means any Person other than End User or YourSix

2. License Grant and Scope. Subject to and conditioned upon the terms and conditions set forth in this Agreement, YourSix hereby grants to End User a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement (the “License”). This License grants End User the right to:

(a) Use and access the Software as in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for End User’s internal business purposes.

(b) Download, install and use the Application for use on a single mobile device owned or otherwise controlled by End User (“Mobile Device”) solely as set forth in the Documentation. Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by End User: (i) will be the exclusive property of YourSix; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

3. Penetration Testing. End User shall not conduct penetration testing against the YourSix production environment without the prior written consent of YourSix.

4. Use Restrictions. End User shall not, and shall require its Authorized Users not to, directly or indirectly:

(a) use (including make any copies of) the Software or Documentation beyond the scope of the License granted under Section 2;

(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the web application and backing cloud services;

(e) 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 Software or Documentation, including any copy thereof;

(f) except as expressly set forth in Section 2, copy the Software or Documentation, in whole or in part;

(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason;

(h) use the Software or Documentation in violation of any law, regulation, or rule; or

(i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to YourSix’s commercial disadvantage.

5. Maintenance and Support.

(a) The License granted hereunder entitles End User to certain maintenance and support services upon the terms and conditions set forth at the following URL: https://yoursix.com/trust/sla.

(b) Maintenance will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as YourSix makes generally available free of charge to all licensees of the Software then entitled to maintenance services. YourSix may develop and provide Updates in its sole discretion, and End User agrees that YourSix has no obligation to develop any Updates at all or for particular issues. End User further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.

(c) YourSix has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if End User is in breach under this Agreement; or (iv) for any Software that has been modified other than by or with the authorization of YourSix, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by YourSix in writing.

6. Collection and Use of Information.

(a) End User acknowledges that YourSix may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, as further described in our Privacy Policy.

(b) End User agrees that YourSix may use such information for any purpose related to any use of the Software by End User or on End User’s equipment, including but not limited to: (i) improving the performance of the Software or developing Updates; (ii) verifying End User’s compliance with the terms of this Agreement and enforcing YourSix’s rights, including all Intellectual Property Rights in and to the Software; and (iii) for any other purpose described in our Privacy Policy.

7. Intellectual Property Rights. End User acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to End User. End User does not acquire any ownership interest in the Software or Documentation 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. YourSix and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to End User in this Agreement. End User shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. End User shall promptly notify YourSix if End User becomes aware of any infringement of YourSix’s Intellectual Property Rights in the Software and fully cooperate with YourSix in any legal action taken by YourSix to enforce its Intellectual Property Rights. YourSix utilizes FFmpeg under the LGPLv2.1.

8. Term and Termination.

(a) This Agreement and the License granted hereunder shall commence when End User accesses the Software pursuant to an applicable Order Form and acknowledges acceptance of this Agreement and shall remain in effect for so long as End User maintains an active License (the “Term”).

(b) YourSix may terminate this Agreement, effective upon written notice to End User, if End User, materially breaches this Agreement.

(c) YourSix may terminate this Agreement, effective immediately, if End User files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

(d) Upon expiration or earlier termination of this Agreement, the License granted hereunder shall also terminate, and End User shall cease using and destroy all copies of Documentation. No expiration or termination of this Agreement shall affect End User’s obligation to pay all End User Fees that may have become due before such expiration or termination, or entitle End User to any refund.

9. Verification. During the Term and for a period of 12 months after the expiration or termination of this Agreement, End User shall take reasonable steps to maintain complete and accurate records of Software use sufficient to verify compliance with this Agreement and any applicable Order Form (“Verification Records”). Upon reasonable advance notice, End User shall, within 30 days from YourSix’s notice, allow YourSix and its auditors access to the Verification Records and any applicable books, systems, and accounts during normal business hours. If the verification process discloses underpayment of fees: (a) End User will pay such fees; and (b) End User will also pay the reasonable cost of the audit if the fees owed to YourSix as a result exceed the amounts End User paid under the applicable Order Form by more than 5%.

10. Disclaimer of Warranties. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOURSIX, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, YOURSIX PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE END USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

(a) IN NO EVENT WILL YOURSIX OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO END USER 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 YOURSIX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) IN NO EVENT WILL YOURSIX’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE YOURSIX PURSUANT TO THIS AGREEMENT FOR UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT ARE THE SUBJECT OF THE CLAIM.

(c) THE LIMITATIONS SET FORTH IN SECTION 10(a) AND SECTION 10(b) SHALL APPLY EVEN IF THE END USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12. Miscellaneous.

(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the City of Minneapolis and County of Hennepin and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal 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.

(b) YourSix will not be responsible or liable to End User, 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 End User equipment, loss and destruction of property, or any other circumstances or causes beyond YourSix’s reasonable control.

(c) This Agreement is the complete agreement between End User and YourSix with respect to the subject matter of this End Use License Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

(d) 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.


 

Updated: April 4, 2022