SmartPass Mobile End User License Agreement

AVC MOBILE APPLICATION END USER LICENSE AGREEMENT

THIS AVC MOBILE APPLICATION END USER LICENSE AGREEMENT (“License Agreement”) IS A LEGAL AGREEMENT BETWEEN YOU AND AVC INNOVATIONS LLC, a limited liability company organized under the laws of the state of Delaware, with offices at 41 West Highway 14 #1133, Spearfish, SD 57783 United States of America (US) (“AVC” or “LICENSOR”) THAT GOVERNS YOUR USE OF THE AVC MOBILE APPLICATION SOFTWARE THAT WE PROVIDE FOR USE ON YOUR MOBILE DEVICE (the “AVC Application” or “Application”). APPLE, INC. IS NOT A PARTY TO THIS LICENSE AGREEMENT, AND AS BETWEEN AVC AND APPLE, INC., AVC IS RESPONSIBLE FOR THE APPLICATION AND THE CONTENT THEREOF. YOUR USE OF THE APPLICATION IS ALSO GOVERNED BY THE TERMS, CONDITIONS AND POLICIES AVAILABLE ON THE AVC360.COM WEBSITE, INCLUDING BUT NOT LIMITED TO THE PRIVACY POLICY AND TERMS AND CONDITIONS OF USE (collectively, the “AVC Website Terms”), AND ALL REFERENCES TO THE “AVC360.COM SITE” OR THE “SITE” IN SUCH WEBSITE TERMS ARE DEEMED TO ALSO REFER TO THE APPLICATION FOR PURPOSES OF YOUR USE OF THE APPLICATION. BY USING THE APPLICATION, YOU ACCEPT AND AGREE TO BE BOUND BY THIS LICENSE AGREEMENT AND THE WEBSITE TERMS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND THE WEBSITE TERMS, YOU MAY NOT USE THE APPLICATION AND YOU MUST DELETE IT FROM YOUR MOBILE DEVICE. YOU AGREE TO COMPLY WITH ALL APPLICABLE THIRD PARTY TERMS OF AGREEMENT WHEN USING THE APPLICATION.

The Application made available through the App Store is licensed, not sold, to you. Your license to the Application is subject to your prior acceptance of this custom end user license agreement between you and the Licensor AVC, also referred to as the Application Provider (“Custom EULA”). Your license to the Application under this Custom EULA is granted by AVC, and your license to any Third Party App under this Custom EULA is granted by that Third Party App. The Application that is subject to this Custom EULA is referred to herein as the “Licensed Application” or the “Application.” AVC, not Apple, is solely responsible for the Licensed Application and the content thereof. AVC (“Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Custom EULA.

1. Scope of License: Subject to the terms and conditions of this License Agreement and the Website Terms, AVC as Licensor hereby grants to you a limited, non-exclusive, nontransferable, non-sublicensable license to use the Licensed Application on your mobile device, solely for receiving services from AVC or its affiliates, and you acknowledge subject to the Apple Usage Rules set forth in the Apple Media Services Terms and Conditions. The terms of this Custom EULA will govern any content, materials, or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace or supplement the original Licensed Application. Except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the Licensed Application and, if you sell your mobile device to a third party, you must remove the Licensed Application from the mobile device before doing so. You shall not (a) reproduce, modify, copy (except as permitted by this license and the Apple Usage Rules), translate or create any derivative work, or update, of all or any portion of the Application (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application), (b) sell, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Application to any third party, (c) reverse engineer, decompile, reverse assemble or otherwise attempt to gain access to or derive the source code of all or any portion of the Application, or (d) remove, alter, modify, or cover any copyright notices or other proprietary rights notices that are found in the Application.
   
   
2. Reservation of Rights. AVC reserves all reserves all rights not otherwise expressly granted in this License Agreement and no licenses are granted by implication, estoppel or otherwise. You agree that title to all portions of the Application and the copyright, patent, trade secret and all other intellectual property rights in the Application, including derivative works and all copies of the Application, are and remain the exclusive property of AVC, its affiliates and their licensors. You acknowledge and agree that the Application and/or certain components of it constitute confidential information and valuable trade secrets of AVC and its affiliates, and you promise to keep it in confidence and not disclose it to any third party. You acknowledge and agree that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. AVC is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in the EULA, or as required under applicable law. In the event of an intellectual property claim that the Application or your possession and use of the Application infringes on a third party’s intellectual property rights, AVC, not Apple, Inc., reserves the right to investigate, defend, settle, and discharge of any such intellectual property infringement claim.
   
   
3. Consent to Use of Data: You agree that Licensor may collect and use technical data and related information—including but not limited to technical information about your mobile device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
   
   
4. Updates/Modifications. You agree that AVC may at any time and without notice, change the terms, conditions or notices under which the Application is offered. AVC will post any such changes on the AVC360.com website or within the Application, and your continued use of the Application evidences your agreement to be bound by such changes. AVC is not required to provide updates, maintenance or support for the Application, but we may choose to do so, or to cease doing so, from time to time with or without notice. Any updates will be governed by this License Agreement and the Website Terms.
   
   
5. Applicable Law; Export. You will comply with all applicable laws in connection with your use of the Application. You acknowledge that the Application may be subject to U.S. or foreign export and import laws and regulations. You will comply with all applicable import, export and re-export laws and regulations of the United States or foreign agencies or authorities. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that you have been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
   
   
6. Termination. This Custom EULA is effective until terminated by you or Licensor. Your rights under this Custom EULA will terminate automatically if you fail to comply with any of its terms. You agree that AVC may discontinue, suspend or terminate your right or ability to use all or part of the Application at any time, without notice or liability to you. You may terminate this License Agreement by ceasing use of the Application and destroying all copies in your possession or control. AVC may terminate this License Agreement for any or no reason, at any time without prior notice. This License Agreement will automatically terminate if you breach any of its terms or conditions. Immediately upon any termination of this License Agreement, you will cease use of the Application and destroy all copies in your possession or control. All provisions of this License Agreement regarding restrictions, AVC’s proprietary rights and confidential information, disclaimers of warranties, remedies, and limits of liability shall survive termination.
   
   
7. External Services. The Licensed Application may enable access to Licensor’s and/or third-party services and websites (collectively and individually, “External Services”). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial, medical and/or location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Custom EULA or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.

If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.

Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.

You, the End-User, agree that Apple, Inc. and its subsidiaries are third party beneficiaries of this License Agreement and that, upon your acceptance of the terms and conditions of this License Agreement, Apple, Inc. will have the right (and will be deemed to have accepted the right) to enforce the License Agreement against You (the End-User) as a third party beneficiary thereof.

Contacting AVC. Any communication regarding the Application or this License Agreement should be directed to: AVC Innovations LLC, Attn: Legal Department, 41 West Highway 14 #1133, Spearfish, SD 57783 USA, and with carbon copy (CC) to electronic mail address eula@avc360.com. AVC, and not Apple, Inc., is responsible for addressing claims relating to the Application and your possession and/or use of the Application.