End User License Agreement

This End User License Agreement (the “Agreement”) is hereby entered into and agreed upon by you, either as an individual or an entity, and its Affiliates (“You” or “Company”) and ei3 Corporation, Inc. (“ei3 Corporation”), for the Software.   This Agreement sets forth the obligations of each party. You accept this Agreement, either by indicating your acceptance, by executing an order form that references this agreement, or by accessing the Software as defined below.  This agreement is a legally binding contract between you and ei3 Corporation, and sets forth the terms that govern the license provided to you hereunder. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this agreement.  Any changes or additions by you to this agreement will not be accepted and will not be a part of this agreement. If you do not agree to this agreement you must not use the Software.

 

Definitions

Affiliates

Means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity.  Subject to the terms of this Agreement, Affiliates may use the license granted hereunder. All references to “ei3 Corporation” shall be deemed to be references to ei3 Corporation and its affiliates, and all references to “Company”, “You” or “Your” shall be deemed to be reference to Company and its Affiliates(s).

Documentation

Means the official user documentation prepared and provided by ei3 Corporation to You about the use of the Software. For the avoidance of doubt, any online community site, unofficial documentation, videos, white papers, or related media, or feedback, does not constitute Documentation.

Software

Means computer programs in any form, including on-demand, cloud, Internet software services, (sometimes called Software-as-a-Service), or downloadable object code products, as well as updates, new releases, versions, modifications, or enhancements, owned and provided by ei3 Corporation to You pursuant to this agreement.

Term of Service

Means the time period for which the Software has been purchased.  The Term of Service starts commences at midnight of the Start Date and continues to 23:59:59 of the End Date.

Users

Means an individual authorized by You to use the Software and Documentation.  User(s) may include Your employees, consultants, contractors, and, Your customers.

Grant of License

Upon payment of the applicable fees for the Software and continuous compliance with the terms and conditions of this Agreement and the Documentation, ei3 Corporation hereby grants You a limited, worldwide, perpetual, nonexclusive, nontransferable license to use the Software and Documentation for the Term of Service subject to the terms contained herein:

  1. For each Software license that You purchase from ei3 Corporation, You may use the Software solely for its designed purposes.
  2. You shall only use the Software during the Term of Service.

LICENSE RESTRICTIONS; OBLIGATIONS

General.

You may not: (i) provide, make available to, or permit other individuals to use the Software or Documentation, except under the terms listed above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation (except for backup or archival purposes, which will not be used for transfer, distribution, or sale); (iv) remove any proprietary notices or labels on the Software or Documentation; (v) license the Software if You are a competitor of ei3 Corporation or for the purposes of monitoring the Software ’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (vi) use the Software  to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; or (vii) use the Software in a manner that results in excessive use or circumvention of the technical limitations or usage limits of the Software. Any such forbidden use shall immediately terminate Your license to the Software. The Software is intended only for use with public domain or properly licensed third-party materials. All responsibility for obtaining such a license is Yours, and ei3 Corporation shall not be responsible for Your failure to do so.

Trademarks.

You may not delete, remove, hide, move, or alter any trademark, logo, icon, image, or text that represents the company name of ei3 Corporation, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the company name or mark of “ei3 Corporation” or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presences of absence of a trademark, copyright or other intellectual property symbol or notice.

The Software has a feature that allows for the application of Your trademark, logo, icon, image, or text, known as “White Label Branding”.  You may only use White Label Branding after having obtained the requisite authority from the brand owner to use the trademark, logo, icon, image or text.

License Obligations

You acknowledge, agree, and warrant that: (i) You will be responsible for Your and Your Users’ activity and compliance with this Agreement, and if You become aware of any violation, You will immediately terminate the offending party’s access to the Software and Documentation and notify ei3 Corporation; (ii) You are legally able to process Your Data and provide Your Data to ei3 Corporation, including obtaining appropriate consents or rights for such processing, as outlined further herein and have the right to access and use Your infrastructure, including any system or network, to obtain or provide the Software  and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; (iii) You will keep your registration information, billing information, passwords, and technical data accurate, complete, secure and current; and (iv) You shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which You use the Software and Documentation, including, but not limited to, applicable local, state, federal, and international laws, including intellectual property and privacy and security laws.

RIGHTS RESERVED.

The Software Is Licensed, Not Sold.

Use herein of the word “purchase” in conjunction with licenses, license keys, or the Software shall not imply a transfer of ownership. Unless as conveyed herein, this Agreement does not grant You any rights, title, or interest in or to Software, Documentation, trademarks, service marks, or trade secrets, or corresponding intellectual property (including without limitation any images, photographs, animations, video, audio, music, and text incorporated into the Software, the accompanying printed materials, and any copies of the Software) of ei3 Corporation or its suppliers, and all rights, title, and interest in and to the Software , Documentation, and corresponding intellectual property shall remain the property of ei3 Corporation, its suppliers, or are publicly available. All rights not expressly granted under this Agreement are reserved by ei3 Corporation, its suppliers, or third parties. All title, rights, and interest in and to content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable laws and treaties, including intellectual property laws. This Agreement gives You no rights to such content, including use of the same. Ei3 Corporation agrees that Your Data (including without limitation, machine performance, downtimes, quality, recipe, operations, and the like) shall be and remain Your property.  You agree that ei3 Corporation is licensed to use your Data in the aggregate for the purpose of anonymous benchmarking, technical support, marketing, and product improvement purposes.

CONFIDENTIALITY; PERSONAL DATA.

Confidential Information

Means any nonpublic or proprietary information, in tangible or intangible form, that a party to this Agreement (“Disclosing Party”) designates as being confidential by legends or other markings or in a separate writing provided contemporaneous with the disclosure to the party that receives such information (“Receiving Party”). Confidential Information includes the Software Documentation and any other intellectual property or proprietary rights thereto, as well as Personal Data. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. Confidential Information shall not include any information, excluding Personal Data, however designated, that: (i) is (or subsequently becomes through no fault of the Receiving Party) publicly available; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) was lawfully received by the Receiving Party from a third party without such restrictions; or (iv) is independently developed by Receiving Party without breach of this Agreement or access to, reference to, or use of the Confidential Information.

Protection of Data

You agree that ei3 Corporation will process machine operational, performance, configuration, usage, and energy consumption data, which may include hardware identification, operating system, internet protocol address, or other data about You and Your Users’ use of the Software in accordance with its Privacy Policy. Each party shall comply with its respective obligations under applicable data protection legislation and will maintain appropriate administrative, physical, technical, and organizational measures that provide an appropriate level of security for Confidential Information and Personal Data. ei3 Corporation and its US Affiliates have certified their adherence to the EU-US and Swiss-US Privacy Shield Frameworks and will process Personal Data subject to Swiss or European data protection laws in accordance with Privacy Shield and its corresponding principles.

Protection of Confidential Information.

Receiving Party may use Confidential Information of Disclosing Party to exercise its rights and perform its obligations under this Agreement; in connection with the parties’ ongoing business relationship; or as otherwise set forth herein. Receiving Party will not use any Confidential Information of Disclosing Party for any purpose not permitted by this Agreement and will disclose the Confidential Information of Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality respecting the protection of Confidential Information substantially similar to those of this Agreement. Receiving Party will utilize commercially reasonable efforts to protect Confidential Information from unauthorized or unlawful processing by maintaining appropriate technical and organizational measures that help to provide an appropriate level of security for Confidential Information. The parties will each be responsible for any breach of this Agreement by their consultants or agents. Confidential Information shall remain at all times the property of the Disclosing Party. No rights to use, license or otherwise exploit the Confidential Information are granted to the Receiving Party or its agents, by implication or otherwise

LIMITED WARRANTY.

ei3 Corporation warrants to You that, for a period of thirty (30) days following the initial purchase and delivery of the Software to You, the Software will perform substantially in conformance with the Documentation. ei3 Corporation does not warrant that the Software will meet all of Your requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) Software that is modified or altered by You or any third party that is not authorized by ei3 Corporation; (ii) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; or (iii) failures that are caused by other software or hardware products. To the maximum extent permitted under applicable law, as ei3 Corporation and its suppliers’ entire liability, and as Your exclusive remedy for any breach of the foregoing warranty, ei3 Corporation will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if ei3 Corporation is unable to repair or replace the Software, refund to You the applicable license fees paid upon return, if applicable, of the nonconforming item to ei3 Corporation. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software under this limited warranty will be warranted for thirty (30) days. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EI3 CORPORATION IS PROVIDING AND LICENSING THE SOFTWARE TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

INTELLECTUAL PROPERTY INDEMNIFICATION.

ei3 Corporation will indemnify and hold You harmless from any third party claim brought against You that the Software, as provided by ei3 Corporation to You under this Agreement and used within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software by You is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software with products not supplied by ei3 Corporation. ei3 Corporation’s indemnification obligations are contingent upon You: (i) promptly notifying ei3 Corporation in writing of the claim; (ii) granting ei3 Corporation sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing ei3 Corporation with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states ei3 Corporation’s entire liability (and shall be Company’s sole and exclusive remedy) with respect to indemnification to Company.

LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EI3 CORPORATION, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE TO YOU (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) (I) FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID TO EI3 CORPORATION IN THE PRECEDING (12) TWELVE MONTHS FOR THE APPLICABLE SOFTWARE, OR (II) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF YOUR DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE, ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF EI3 CORPORATION OR A PARTY AUTHORIZED BY EI3 CORPORATION HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CHOICE OF LAW AND VENUE.

This Agreement shall be governed by the laws of the State of New York and of the United States, without regard to any conflict of law provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. You hereby consent to jurisdiction of the courts of both the state and/or federal courts of New York.

GENERAL.

Notices.

All notices must be in writing and shall be mailed by registered or certified mail to ei3 Corporation, Two Blue Hill Plaza, Suite 1544, Pearl River, NY, 10965 USA or sent via email to legal.notice@ei3.com (with  evidence of effective transmission).

Counterparts and Email Signature.

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The Parties may exchange signature pages by email and such signatures shall be effective to bind the Parties.

Complete Agreement.

This Agreement along with the Software Support and Maintenance Terms and Conditions, the ei3 Corporation Privacy Notice and any applicable product addenda located at http://www.ei3.com/legal/ constitute the entire agreement between the parties and supersede all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof including without limitation the terms of any purchase order issued in connection with this Agreement.

Modifications.

This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.

Severability.

If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement.

Waiver.

The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver of that right.

Force Majeure.

ei3 Corporation will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.

Construction.

Paragraph headings are for convenience and shall have no effect on interpretation.

Third Party Rights.

Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a party to it, and no person not a party to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.

Relationship of the Parties.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

 

PRODUCT ADDEDNA.

If you are purchasing any of the below-listed Software products, the addendum to this Agreement identified below and located at https://www.ei3.com/legal shall complement this Agreement and supersede any conflicting terms set forth herein.

 

Copyright 2018 ei3 Corporation, Inc.  All Rights Reserved