End User License Agreement
This End User License Agreement (this “Agreement”) is a binding agreement between you (“User” or “you”) and Tri-State Generation and Transmission Association, Inc., a Colorado cooperative corporation (“Licensor”). This Agreement governs your use of the mobile application linking to this Agreement (including all related documentation, the “Mobile Application”). The Mobile Application is licensed, not sold.
BY CLICKING THE “I ACCEPT” BUTTON BELOW, AND/OR BY INSTALLING AND/OR USING THE MOBILE APPLICATION AND ANY OF THE LICENSOR’S SERVICES ACCESSIBLE THROUGH THE MOBILE APPLICATION, YOU ACKNOWLEDGE THAT YOU ARE ABOVE THE AGE OF 18 AND HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER UNDERSTAND THAT THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND LICENSOR, AND YOU AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS , INCLUDING WITHOUT, LIMITATION CONDUCTING THIS TRANSACTION ELECTRONICALLY, DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, ARBITRATION, AND CHOICE OF COLORADO LAW. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD REJECT THEM BY NOT CLICKING ON “I ACCEPT” AND BY NOT INSTALLING OR USING THE MOBILE APPLICATION.
1. LICENSE GRANT
Subject to the terms of this Agreement, Licensor grants you a limited, non-exclusive, non-sublicensable, and nontransferable license to download, install, access, and use the Mobile Application for your personal, internal business, non-commercial use on a mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Mobile Application’s documentation.
You acknowledge and agree that the Mobile Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile Application under this Agreement, or any other rights thereto other than to use the Mobile Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. The Mobile Application and any content provided in connection therewith are protected by intellectual property and other laws of the United States and foreign countries. You acknowledge and agree that the Mobile Application and any content provided in connection therewith, including all associated intellectual property rights, are the exclusive property of Licensor and its licensors, and all rights are reserved.
You acknowledge and agree that certain information, materials, products, and content made available through the Mobile Application are owned or controlled by third parties and are subject to change or may become unavailable at any time and without notice.
You may only use the Mobile Application for lawful purposes. You agree you shall not: (i) infringe any copyright, patent, right of privacy, right of publicity, trademark, trade secret, or other right of Licensor or any third party; (ii) use the Mobile Application in connection with any abuse, defamation, harassment, or stalking of any individual or other user of the Mobile Application or any of the individuals whose information is contained in or access through the Mobile Application; (iii) interfere or attempt to interfere with, or damage or attempt to damage, the Mobile Application or the proper working thereof, including, without limitation, through the use of cancel bots, denial of service attacks, flood pings, forged routing or electronic mail address information, harmful code, packet or IP spoofing, phishing, Trojan horses, viruses, or similar methods or technology; (iv) use any deep-link, page-scrape, robot, spider, or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Mobile Application or any content thereon, or in any way reproduce or circumvent the navigational structure or presentation of the Mobile Application, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Mobile Application; (v) misrepresent your identity, provide false information, impersonate another person or entity, misrepresent your affiliation with a person or entity, including, without limitation, Licensor, create or use a false identity, or attempt to use another user’s account; (vi) attempt to obtain unauthorized access to the Mobile Application; (vii) collect, reverse look-up, trace or seek to trace, manually or through automated means, information about other users or visitor to the Mobile Application or any of the individuals whose information is contained in or access through the Mobile Application without their express consent; (viii) use any meta tags or any other hidden text utilizing the Licensor name, service marks, trademarks, or product or service names; (ix) advertise, offer to sell, or sell any goods or services set forth in the Mobile Application or otherwise use the Mobile Application to solicit other users, except as expressly permitted by Licensor; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Mobile Application; (xi) probe, scan, or test the vulnerability of the Mobile Application or any network connected thereto, or breach the security or authentication measures on the Mobile Application or any network connected thereto; (xii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Mobile Application or Licensor’s systems or networks, or any systems or networks connected thereto; (xiii) ) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Application or any features or functionality of the Mobile Application, to any third party for any reason, including by making the Mobile Application available on a network where it is capable of being accessed by more than one device at any time; (xiv) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Mobile Application; (xv) use the information of or contact any of the individuals whose information is contained in or access through the Mobile Application expect for legitimate and lawful business; or (xvi) assist any third party in engaging in any activity prohibited by this Agreement.
3. Mobile Application
Prior to using the Mobile Application for the first time, you may be required to register and create an account (“Account”) through the Mobile Application or provide an e-mail address. You represent and warrant that all information provided during registration and Account setup is truthful, accurate, and complete. If you provide any information that is untrue, inaccurate, or incomplete, or if Licensor has reasonable grounds to suspect the foregoing, Licensor has the right to suspend or terminate your Account and refuse any and all current or future use of the Mobile Application. Once registration is completed, you may login and use this Account. You are solely responsible for all data charges that may be charged by your wireless carrier or internet service provider or that may otherwise arise from your use of the Mobile Application. You further acknowledge and agree that the Mobile Application may include certain communications from Licensor, such as service announcements and administrative messages, and that you cannot opt out of receiving these messages through the Mobile Application so long as you maintain an Account.
You shall maintain confidentiality of your login credentials to your Account, including username and password (“Credentials”) and shall be responsible for any and all damages or losses that may be incurred or suffered as a result of any activities that occur under your Credentials. You agree to immediately notify Licensor in writing by email to email@example.com of any unauthorized use of your Credentials or any other breach of security. Licensor is not and shall not be liable for any harm arising from or relating to the theft of your Credentials, your disclosure of your Credentials, or the use of your Credentials by another person or entity. Any attempt to obtain unauthorized access, or to exceed authorized access, to the Mobile Application shall be considered a trespass and computer fraud and abuse, punishable under state and federal laws. Licensor hereby notifies you that communications through the Mobile Application may be monitored, captured, recorded, and transmitted to law enforcement and regulatory authorities as deemed necessary by Licensor in its sole discretion and without further notice.
When you send electronic communications through the Mobile Application, you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
4. COLLECTION AND USE OF YOUR INFORMATION BY Licensor
5. GEOGRAPHIC RESTRICTIONS
The Mobile Application is provided for access and use only by persons located in the United States. Use of this Mobile Application outside the United States is not authorized by the Licensor. If you access the Mobile Application from outside the United States, you are solely responsible for compliance with local and international laws and consent to the transfer, storage and processing in the United States of all information and data collected and generated through your use of the Mobile Application.
Licensor may from time to time in its sole discretion develop and provide Mobile Application updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may modify or delete in their entirety certain features and functionality. You agree that Licensor does not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Mobile Application. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (i) the Mobile Application will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates.
You acknowledge and agree that the Mobile Application or portions thereof may not properly operate if you do not install the Update. You further agree that all Updates will be deemed part of the Mobile Application and be subject to all terms and conditions of this Agreement.
Although Licensor reserve the right to correct any errors, omissions, or inaccuracies (such as typographical or imaging errors), Licensor is not responsible for the accuracy, reliability, or completeness of any information, content, materials, services, or other resources (collectively “Resources”) available on or accessible through the Mobile Application, including the substance, accuracy, or sufficiency of any service listed in the Mobile Application. Resources may be made available by Licensor or by third parties, and may be made available for any purpose including for general information purposes. WE MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE COMPLETENESS, ACCURACY, RELIABILITY, VALIDITY, OR TIMELINESS OF ANY OR ALL OF THE RESOURCES.
8. THIRD PARTY MATERIALS
The Mobile Application may display or make available third-party content (including data, information, applications, and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials”). You acknowledge and agree that Licensor is not responsible for such Third-Party Materials, including the accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, or quality. Licensor assumes and will not have any liability or responsibility for such Third-Party Materials. Third-Party Materials and links are provided solely as a convenience to you. You use them at your own risk, subject to the third parties’ terms and conditions.
9. TERM AND TERMINATION
The term of this Agreement commences when you install the Mobile Application, register and create an Account, and acknowledge your acceptance of the terms of this Agreement. This Agreement continues in effect until terminated by: (i) you, by deleting the Mobile Application and all copies thereof from your Mobile Device; or (ii) Licensor, at any time without notice. Without limiting the foregoing, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
All sections that either expressly or by their nature survive termination of this Agreement shall continue in effect following termination of this Agreement.
YOU AGREE THAT YOUR USE OF THE MOBILE APPLICATION SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR AND ITS SUPPLIERS, AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE MOBILE APPLICATION AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, ACCURACY, COMPLETENESS, TITLE, AVAILABILITY, AND NON-INFRINGEMENT. THE MOBILE APPLICATION IS PROVIDED “AS AVAILABLE,” “AS IS,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OR CONDITION OF ANY KIND. LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE MOBILE APPLICATION AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE MOBILE APPLICATION OR INFORMATION ACCESSED THEREUPON, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF LICENSOR’S OR OUR SUPPLIERS’ SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY TRANSMISSION TO OR FROM THE MOBILE APPLICATION, AND/OR (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE MOBILE APPLICATION THROUGH THE ACTIONS OF ANY THIRD PARTY. NEITHER LICENSOR NOR ANY OF Our SUPPLIERS OR AFFILIATES WARRANT THAT (A) THE MOBILE APPLICATION OR ANY OTHER CONTENT OR INFORMATION PROVIDED IN CONNECTION WITH THE MOBILE APPLICATION WILL MEET YOUR REQUIREMENTS, (B) THE QUALITY OF THE MOBILE APPLICATION OR THE CONTENT OR INFORMATION ACCESSED BY YOU UNDER THIS AGREEMENT WILL MEET YOUR EXPECTATIONS, (C) THE OPERATION OF THE MOBILE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR (D) THE CONTENT OF THE MOBILE APPLICATION WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE, OR ACCURATE, OR THAT ERRORS WILL BE CORRECTED.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL LICENSOR, ITS SUPPLIERS, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM OR RELATED TO ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM OR RELATED TO YOUR ACCESS TO AND USE OF THE MOBILE APPLICATION, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF LICENSOR SERVERS, (IV) ANY TRANSMISSION TO OR FROM LICENSOR SERVERS, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE MOBILE APPLICATION, (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE MOBILE APPLICATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND/OR (VII) THE DISCLOSURE OF INFORMATION PURSUANT TO THIS AGREEMENT EVEN IF LICENSOR OR ANY OF ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF ANY EXCLUSION, DISCLAIMER, OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION, AND LICENSOR, OR ONE OF its AFFILIATES, OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES BECOMES LIABLE FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT ACTUALLY PAID BY YOUR USE OF THE MOBILE APPLICATION OR $100.00, WHICHEVER IS LESS. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE MOBILE APPLICATION, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE MOBILE APPLICATION.
You agree to indemnify, defend and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, assigns, and licensors from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Mobile Application or your breach of this Agreement. Further, you agree that Licensor assumes no responsibility for the content you submit or make available through this Mobile Application.
13. EXPORT REGULATION
The Mobile Application may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Mobile Application to, or make the Mobile Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Mobile Application available outside the U.S.
14. US GOVERNMENT RIGHTS
The Mobile Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Mobile Application as are granted to all other end users under license, in accordance with (48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
If any provision of this Agreement is illegal or unenforceable under applicable law by a court of competent jurisdiction, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. GOVERNING LAW
This Agreement is governed by and construed in accordance with the laws of the State of Colorado without giving effect to any choice or conflict of law provision.
Any claim or dispute between you and Licensor that arises in whole or in part from this Agreement shall be decided exclusively by a court of competent jurisdiction located in the Denver County, Colorado; provided, that you hereby agree that any dispute arising out of or relating in any way to this Agreement or your use of the Mobile Application and/or any information, materials or services you obtain from Licensor requires that such claim be resolved exclusively by confidential binding arbitration, except that, to the extent you have in any manner violated or threatened to violate Licensor’s or its suppliers’ intellectual property rights, Licensor and/or its suppliers may seek injunctive or other appropriate relief in a court of competent jurisdiction in the Denver County, Colorado. The arbitration shall be conducted before three neutral arbitrators in Denver, Colorado, U.S.A., in accordance with the rules of the American Arbitration Association, as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding. Except for punitive and consequential damages (which may not be awarded), and subject to this Agreement, the arbitrators shall be authorized to award either party any provisional or equitable remedy permitted by applicable law.
BECAUSE THE USE OF THE MOBILE APPLICATION REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATORS’ DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.
The award of the arbitrators may be enforced in any court having jurisdiction thereof. Each party hereby consents (i) to the non-exclusive jurisdiction of the state or federal courts located in Denver County, Colorado for any action (a) to compel arbitration, (b) to enforce any award of the arbitrators, (c) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim or provisional equitable remedies, or (d) to enforce Licensor’s intellectual property rights, and (ii) to service of process in any such action by registered mail or any other means provided by law. Should this section be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that sole and exclusive jurisdiction and venue for any claims will be in the state or federal courts in Denver County, Colorado.
18. LIMITATION OF TIME TO FILE CLAIMS
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE MOBILE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. ENTIRE AGREEMENT
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase