This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Tucson Electric Power Company ("TEP"). This Agreement governs your use of the TEP Customer Mobile App on the iOS or Android mobile platform, (the "Mobile App"). The Mobile App is licensed, not sold, to you. This Agreement is between TEP and you, not Apple, Inc. ("Apple") and TEP is solely responsible for the Mobile App and its content.
1. License Grant and Use of Mobile App. The terms of this Agreement will govern any Updates (as defined in Section 8) and upgrades unless an upgrade is subject to a separate license agreement in which case the terms of that license will govern. Subject to the terms of this Agreement, TEP grants you a revocable, limited, non-exclusive and nontransferable license to:
You also agree to fully comply with applicable third party terms of agreement when using the Mobile App, such as your wireless data service agreement.
2. License Restrictions. TEP owns, or has the license to, all right, title and interest in and to the Mobile App. You shall not: (a) copy the Mobile App, except as expressly permitted by this Agreement; (b) modify, translate, adapt, or create derivative works of the Mobile App; (c) reverse-engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile App or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, or other intellectual property or proprietary rights notices from the Mobile App; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile App, or any features or functionality of the Mobile App, to any third party for any reason, including by making the Mobile App available on a network where it is capable of being accessed by more than one device at any time.
3. Reservation of Rights. You acknowledge and agree that the Mobile App is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile App under this Agreement, or any other rights thereto other than to use the Mobile App in accordance with this Agreement. TEP reserves and shall retain all rights in and to the Mobile App except as expressly granted to you in this Agreement.
6. Third Party Materials. The Mobile App may display, include, or make available third-party content (including data, information and applications) or provide links to third-party websites ("Third Party Materials"). You acknowledge and agree that TEP is not responsible for Third Party Materials, including their accuracy, completeness, validity, copyright compliance, accessibility, quality, or any other aspect thereof. Third Party Materials are the sole responsibility of the entity that provides it. You acknowledge that TEP does not investigate, monitor or endorse any Third Party Materials. TEP does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions. The license granted under this Agreement does not extend to any Third Party Materials and you agree that you will not use any Third Party Materials in a manner that would infringe or violate the rights of any other party and that TEP is not responsible for any such use by you.
7. Updates. TEP may from time to time in its sole discretion develop and provide Mobile App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, the "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that TEP has no obligation to provide any Updates, continue to support previous versions of the Mobile App after an Update, or provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the Mobile App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You agree that Apple has no obligation to maintain or support the Mobile App.
You will promptly download and install all Updates and acknowledge and agree that the Mobile App or portions thereof may not operate properly should you fail to do so. You further agree that all Updates will be deemed part of the Mobile App and be subject to the terms and conditions of this Agreement unless a separate license agreement is provided with the Update, in which case the terms of that license agreement will govern.
TEP has no obligation to, and may be unable to support or maintain the Mobile App on any particular version of your Mobile Device's operating system. Although the Mobile App may run on previous versions of the operating system, TEP, in its sole discretion, may choose to support or discontinue support on any previous versions of the Mobile App running on outdated versions of your Mobile Device's operating system.
8. Geographic Restrictions, Export Laws. The Mobile App and the Website Content are offered in the United States for access and use in the United States. If you choose to access and use the Mobile App outside the United States, you are solely responsible for compliance with local laws. The Mobile App 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 App to, or make the Mobile App 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 shall not use the Mobile App for any purposes prohibited by United States law. You may not use the Mobile App in a country that is subject to a United States embargo or that has been designated by the U.S. Government as a "terrorist supporting" country or if you are listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entry List. By using the Mobile App, you warrant that you are not using the Mobile App in any such country and that you are not on any such list.
9. Term and Termination. The term of Agreement commences when you download and install the Mobile App and will continue in effect until terminated by you or TEP as set forth below.
You may terminate this Agreement by deleting the Mobile App and all copies thereof from your Mobile Device.
TEP may terminate this Agreement at any time without notice if it ceases to support the Mobile App, which TEP may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice or other action by TEP if you violate any of the terms and conditions of this Agreement.
Upon termination all rights granted to you under this Agreement will also terminate and you must cease all use of the Mobile App and delete all copies of the Mobile App from your Mobile Device. Termination will not limit any of TEP's rights or remedies at law or in equity.
10. Important Safety Information. The Mobile App should never be used while operating a motor vehicle, and use of a Mobile Device while operating a motor vehicle may be illegal under state or local laws.
11. Disclaimer of Warranties. THE MOBILE APP IS PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. YOUR USE OF OR RELIANCE UPON THE MOBILE APP, WEBSITE CONTENT AND THIRD PARTY MATERIALS ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEP EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE MOBILE APP AND WEBSITE CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TEP PROVIDES NO WARRANTY AND MAKES NO REPRESENTATION OF ANY KIND THAT THE MOBILE APP OR THE WEBSITE CONTENT WILL: (I) MEET YOUR REQUIREMENTS, (II) ACHIEVE ANY INTENDED RESULTS, (III) BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, (IV) OPERATE WITHOUT INTERRUPTION, (V) MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, (V) BE FREE FROM ERRORS, CORRUPTION, ATTACK, SECURITY INTRUSION OR VIRUS. TEP DOES NOT WARRANT THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR MOBILE DEVICE OR LOSS OF DATA RESULTING FROM YOUR USE OF THE MOBILE APP.
APPLE HAS NO WARRANTY OBLIGATIONS WITH RESPECT TO THE MOBILE APP AND IS NOT RESPONSIBLE FOR ADDRESSING: (I) PRODUCT LIABILITY CLAIMS, (II) CLAIMS THAT THE MOBILE APP FAILS TO CONFORM WITH ANY LEGAL OR REGULATORY REQUIREMENT, (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION, OR (IV) THIRD PARTY CLAIMS THAT THE MOBILE APP OR YOUR POSSESSION AND USE OF THE MOBILE APP INFRINGES THAT THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TEP HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE MOBILE APP OR THE WEBSITE CONTENT, INCLUDING PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, INABILITY TO ACCESS DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL TEP'S TOTAL LIABILITY FOR ALL CAUSES OF ACTION, LOSSES AND DAMAGES ARISING OUT OF THE USE OF THE MOBILE APP AND THE WEBSITE CONTENT EXCEED DIRECT DAMAGES OVER FIFTY DOLLARS ($50). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR TEP WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. 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 APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
14. Indemnification. You agree to indemnify and defend TEP and its officers, directors, employees, agents, affiliates, successors, and assigns 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: (i) your use or misuse of the Mobile App or Website Content; (ii) your breach of this Agreement; (iii) your violation of law; or (iv) your violation of the rights of a third party, including the infringement by you of any intellectual property rights, including any Third Party Materials. You acknowledge that you (and not TEP) are responsible for addressing any third party claims relating to your use or possession of the Mobile App and agree to notify TEP of any third party claims in relation to the Mobile App of which you become aware. These obligations will survive the termination of this Agreement.
15. Modification or Amendment. TEP may modify or amend the terms of this Agreement and the license contained herein by posting the modified Agreement on the Mobile App where it is accessible by you. Any such change will be effective upon the posting of the revised Agreement and TEP will notify you by revising the "Last Updated" date at the top of this Agreement. By continuing to use the Mobile App after the posting of any such changes, you accept and agree to this Agreement as modified.
16. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, 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.
17. Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Mobile App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in Tucson and Pima County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
18. Third Party Beneficiaries. You and TEP acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of this Agreement and that, upon acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
19. Waiver. 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 or other terms, the terms of this Agreement shall govern.
20. Contact Information. Please direct any questions, comments or complaints about the Mobile App to email@example.com.