End-User License Agreement
The System is protected by US patent, copyrights, trade secrets, and other intellectual property laws. The System is licensed and not sold.
1. GRANT OF LICENSE; PROPRIETARY RIGHTS. Subject to the terms and conditions of this Agreement, Ergsense grants to you a limited, non-exclusive and non-transferable license to install and use the System and any explanatory materials, such as user manuals, training materials and product descriptions regarding the System (collectively, “Documentation”), solely for your own internal business operations. This License permits a single authorized end user to install the System on a single device for use by that end user only. You may only use the System if you have acquired a valid license from either Ergsense or its authorized reseller.
2. INTELLECTUAL PROPERTY RIGHTS. Subject to the license granted herein, all right, title and interest in and to the System, including its object code and source code, the accompanying Documentation, and any copies of the System, are solely owned by Ergsense. You may not exercise any right, title or interest in and to the System or any related intellectual property rights, except for the limited usage rights granted to you in this Agreement. You agree that you will take no action inconsistent with Ergsense’s intellectual property rights. This License is not an agreement of sale and does not transfer any title or intellectual property rights in or to the System to you.
3. COLLECTION OF PERFORMANCE DATA OR SYSTEM INFORMATION. The System employs applications and tools designed to install, connect, scale, monitor, measure, collect and transmit to you and Ergsense certain data (“Data”) in connection with the performance and use of the System, its support and the products sold by Ergsense (collectively, the “Products”) to you. By entering into this Agreement, or using the System, you agree to the collection, processing, copying, backup, storage, transfer and use of the Data by Ergsense and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of Ergsense’s own jurisdiction. You acknowledge that Ergsense will be sole owner of such Data which may be used by Ergsense for commercial purposes.
4. LIMITATIONS AND RESTRICTIONS. You will not and you will not allow a third party to:
a. transfer, license, sublicense, sell, rent, distribute, transmit, outsource, disclose or otherwise assign your rights under this license to any other person or entity, unless expressly authorized by Ergsense in writing;
b. copy or use the System for any purpose other than as permitted under this License;
c. modify, adapt or create derivative works of the System or Documentation;
d. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code and designs for the System;
e. make the functionality of the System available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar basis unless expressly authorized by Ergsense in writing; or
f. remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the System.
5. LIMITED WARRANTY AND DISCLAIMER. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SYSTEM IS PROVIDED “AS IS, WHERE IS AND WITH ALL FAULTS”. TO THE EXTENT PERMITTED BY LAW, ERGSENSE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SYSTEM AND ITS SUPPORT, AND ERGSENSE DISCLAIMS ALL OTHER OBLIGATIONS AND LIABILITIES, OR EXPRESS OR IMPLIED WARRANTIES REGARDING THE SYSTEM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. ERGSENSE MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE SYSTEM’S USE OR PERFORMANCE, OR THAT THE OPERATION OF THE SYSTEM WILL BE FAIL-SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS; OR THAT THE SYSTEM WILL PROTECT AGAINST ALL POSSIBLE THREATS.
6. LIMITATION OF LIABILITY. YOU SHALL NOT IN ANY EVENT BE ENTITLED TO, AND ERGSENSE SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER INCLUDING, WITHOUT BEING LIMITED TO, LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, DOWNTIME, INJURY TO REPUTATION, LOSS OF CUSTOMERS, OR LOSSES ARISING OUT OF “FALSE POSITIVE” OR OTHERWISE ERRONEOUS REPORT GENERATED BY THE SYSTEM OR PRODUCTS. YOUR RECOVERY FROM ERGSENSE FOR ANY CLAIM SHALL NOT EXCEED YOUR PURCHASE PRICE FOR THE SYSTEM OR PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
7. INDEMNIFICATION. You agree to unconditionally indemnify and defend Ergsense, its affiliates, and their respective, officers, directors, managers, employees, contractors, representatives and agents (each, an “Ergsense Indemnified Party”) against any and all claims, liabilities and expenses (including court costs and reasonable attorney fees) that an Ergsense Indemnified Party incurs as a result of or in connection with:
(a) any third-party claims arising from:
(i) Your failure to obtain any consent, authorization or license required for Ergsense’s use of Data, System, materials, systems, networks or other technology provided by you under this Agreement;
(ii) Your use of the System in a manner not expressly permitted by this Agreement;
(iii) Ergsense’s compliance with any technology, designs, instructions or requirements provided by you or a third party on your behalf;
(iv) any claims, costs, damages and liabilities whatsoever asserted by any of your affiliates, subcontractors, representatives or authorized agents;
(v) any violation by you of applicable laws; and
(b) any reasonable costs and attorneys’ fees required for Ergsense to respond to a subpoena, court order or other official government inquiry regarding your use of the System
8. MODIFICATIONS AND UPDATES. Ergsense reserves the right to modify, suspend or discontinue, temporarily or permanently, the System or any service to which it connects, with or without notice and without liability to you. Ergsense may from time to time provide enhancements or improvements to the features/functionality of the System, which may include patches, bug fixes, updates, upgrades and other modifications (“Updates”). Updates may modify or delete certain features and/or functionalities of the System. You agree that Ergsense has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the System to you. You further agree that all updates will be (A) deemed to constitute an integral part of the System, and (ii) subject to the terms and conditions of this Agreement.
10. CUSTOMER ADVERTISING COMMITMENTS & TRADEMARK USAGE. During the term, Ergsense may include Customer’s name and logo on a list of customers of the Ergsense service.
11. TERM AND TERMINATION. This Agreement shall remain in effect until terminated by you or Ergsense. Ergsense may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice. You may terminate this Agreement at any time by ceasing use and destroying or deleting all copies of the System. This Agreement will immediately terminate if you breach its terms, or if you fail to pay to Ergsense any amounts due Ergsense and you fail to cure that payment breach within thirty (30) days of notice. Upon termination of this Agreement, you shall destroy or delete all copies of the System in your possession or control. Termination of this Agreement will not limit any of Ergsense’s rights or remedies at law or in equity in case of breach by you (during the term of this Agreement) of any of your obligations under the present Agreement. We will provide you notice if we cancel your account. We will endeavor to promptly provide you notice in the event of any suspension or termination. During a suspension or following a termination, you will not have the ability to use or access the Service and other information contained or stored by you in, or as part of, the Service will no longer be accessible to you. Any suspension of your access to the Service will not limit or waive our rights to terminate your access to the Service. At the point we determine, in our sole discretion, that the reason for suspension of access to your account has been resolved, we will restore access to your account. During a suspension or following a termination, you will not register or attempt to register another account with Ergsense. These Terms terminate upon cancellation of your account. Upon termination, Ergsense has no obligation to store your data, but may do so to comply with legal or business requirements for a reasonable time after termination.
12. FEES / PAYMENT.
12.1. The fees for Ergsense Data service are specified on Ergsense Website(s) and purchase agreements and are subject to change at any time at Ergsense’s sole discretion.
12.2 Payment. Customers are invoiced annually for credit card payments and payments made via wire transfer or ACH. If payment is not received within thirty days (30) of the invoice, the Ergsense Data service will be terminated.
12.3 Billing Contact: Ergsense will send billing correspondence to the email address in the registration process.
12.4 Payment Disputes: In the event of a good faith dispute as to the calculation of a charge, Customer shall immediately give written notice to Ergsense stating the details of such dispute and shall promptly pay any undisputed amount. The acceptance by Ergsense of such partial payment shall not constitute a waiver of payment in full of the disputed amount. Any undisputed amounts not paid within fifteen (15) days of receipt shall accrue interest at a rate of one percent (1 1/2%) per month or the maximum lawful rate, whichever is less. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Ergsense to suspend its provision of the Ergsense Service on ten (10) business days prior notice and require payment in advance until Customer account is paid in full. Customer may not setoff, deduct or otherwise withhold amounts due hereunder.
12.5 The fees charged by Ergsense hereunder do not include any taxes, duties or charges of any kind. Customer will be responsible for all applicable sales, use, value added, goods and services, consumption, withholding, excise and any other similar taxes or federal, state, local taxes or other government taxes related to the payment under this Agreement (excluding taxes based on Ergsense’s net income).
12.6 Refunds. No Refunds will be given.
13. RELATIONSHIP. The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither party intends this Agreement to benefit or create any right or cause of action in or on behalf of, any person or entity other than the parties and listed affiliates. This Agreement is not intended to create a third-party beneficiary of any kind.
14. SEVERABILITY. If a court determines that any provision of this Agreement is invalid or unenforceable under applicable law, the court will modify the provision to the minimum extent necessary to make it valid and enforceable or, if it cannot be made valid and enforceable, the court will sever and delete the provision from this Agreement. The change will affect neither the validity of the amended provision nor the validity of any other provision of this Agreement, which will continue in full force and effect.
15. FORCE MAJEURE. Except for payment for fees due hereunder, neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war, flood, civil commotion, severe weather conditions, unplanned system down time, or any other cause beyond the reasonable control of the party delayed.
16. NO WAIVER. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement must be in writing, specify the provision to be waived and signed by the party agreeing to the waiver.
17. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, excluding however, Ohio law pertaining to conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.
18. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration to be held in Olympia, WA and administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between Ergsense and you relating to its subject-matter and supersede all oral or written proposals, and all communications between the parties relating to its subject-matter.
20. ASSIGNMENT. You may not sublicense, assign or transfer its rights under this Agreement without Ergsense’s prior written consent. Any attempt by you to sublicense, assign or transfer any of its rights, duties or obligations under this Agreement, whether directly, or indirectly by merger, acquisition or change of control, will be null and void.
21. NOTICE TO U.S. GOVERNMENT END USERS. The System and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer System” and “commercial computer System documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer System) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Government end users will acquire the System and Documentation with only those rights set forth in this Agreement. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
22. VERIFICATION OF COMPLIANCE. You agree that upon request from Ergsense or its authorized representative, you will, within thirty (30) days, fully document and certify that use of any and all the System at the time of the request is in conformity with the terms of its purchase and with the terms set forth herein.
23. AMENDMENTS TO THIS AGREEMENT. Ergsense reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material Ergsense will provide at least thirty (30) days’ notice prior to any new material terms taking effect. What constitutes a material change will be determined at Ergsense’s sole discretion. By continuing to access or use the System after any revisions to this Agreement become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the System.