Eagle Point Software Corporation
SUBSCRIPTION LICENSE AGREEMENT
PINNACLE SERIES SERVICES
Updated as of: April 23, 2015
IMPORTANT – READ CAREFULLY: This Subscription License Agreement (this “Agreement”) is a legal agreement between You, the Licensee (“Licensee”, “You” or “Your”), and Eagle Point Software Corporation (“Eagle Point”) governing the use of the Eagle Point Pinnacle Series Services (the “Services”) that are ordered by You under an Order Form. The Services consist of (i) the then current version of the proprietary “Pinnacle Series Software” and (ii) certain content developed and provided by Eagle Point and/or its licensors, including “Public Content” developed and made available by other Eagle Point Business Partners (collectively the “Content”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE COPYING OR USING ALL OR ANY PORTION OF THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “LICENSEE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. YOU MAY NOT ACCEPT THIS AGREEMENT ON BEHALF OF ANOTHER ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AGENT OF SUCH OTHER ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF SUCH OTHER ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
TERMS AND CONDITIONS
Definitions for capitalized terms can be found at the end of this Agreement in Section 10.
- Grant of Subscription License. Eagle Point hereby grants You a nonexclusive, nontransferable, limited, subscription license to use and access the Services with equipment owned by You or under Your control, according to the terms and conditions of this Agreement. This Agreement permits Your usage of the Services for Your internal business needs only, including the Pinnacle Series application, which may be downloaded onto multiple computers, and used to access the Services in an Internet-accessible environment by signing in using a username and password. The subscription license provided to You by Eagle Point under this Agreement is subject to the access and use of the Services by Licensees only. Permitted agents, consultants and subcontractors must be working on Your behalf and only use the Services for Your benefit and provided such Licensees have agreed to the terms and conditions of this Agreement. Any attempts to circumvent this limitation are expressly prohibited. Repeated attempts to circumvent this limitation may result in Your access being suspended or terminated by Eagle Point.
- Limited Right to Use. You may use the Services only in accordance with all of the terms and conditions of this Agreement. Without limiting the foregoing, You acknowledge and agree to each of the following provisions:
(a) Ownership. You acknowledge that (i) all right, title and interest in and to all of the Services and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith, are and shall remain with Eagle Point and/or its licensors, (ii) no right or interest in the Services is conveyed to You other than a limited license to use the Services in accordance with these terms and conditions, (iii) the Services are protected by the copyright laws of the United States, and (iv) Eagle Point asserts that the Services embody valuable confidential and secret information of Eagle Point, the development of which required the expenditure of considerable time and money. Any right not expressly licensed to You herein is expressly reserved.
(b) Certain Obligations. Except as expressly set forth herein, You (i) shall not disclose or provide any portion of the Services (or any modifications or derivatives thereof) to any other party, (ii) shall not alter, reverse engineer, disassemble or decompile any part of the Services, (iii) shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Services, (iv) shall not remove any copyright and other proprietary notices contained in the Services, (v) shall not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by Eagle Point in connection with the Services, or use the Services together with any authorization code, serial number, or other copy protection device not supplied by Eagle Point directly or through an authorized reseller, and (vi) shall maintain all usernames, passwords, or copies of the Pinnacle Series Software or Content in a manner so as to reasonably preclude unauthorized use thereof or access thereto. You alone are responsible for the security of Your usernames and passwords.
(c) Third Party Components. Unless expressly permitted herein, You may not use any third party component contained in or provided with the Services separately from Your use of the Services.
(d) Distribution Limitation. Except as expressly set forth herein, You may not share Your username or password associated with the Services with any other individual or party. You may not rent, lease, or lend the Services. Unless You are an authorized reseller under contract with Eagle Point, You may not distribute usernames, passwords, or copies of the Pinnacle Series Software or Content to third parties. Any actions in violation of this section will result in immediate termination of Your access to the Services and Content.
(e) Restricted Rights for U.S. Government Licensees. If Licensee is an individual, agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, or if any of the Services is used by or on behalf of a unit or agency of the United States Government, the Government agrees that the Services and Content are “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to these, including the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services is limited by the terms of this Agreement, pursuant to FAR § 12.212 and/or DFARS § 227.7202, as applicable. For purposes of any public disclosure provision under any federal, state or local law, it is agreed that the Services and any associated content is a trade secret and a proprietary commercial product and not subject to disclosure.
(f) Canadian Licenses. If You purchased the Services for use in Canada, You agree to the following: the parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s’y rattachent, soient rédigés en langue anglaise.
(g) Foreign Export. No portion of the Services shall be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.
(h) Copyright Protection. Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect the Services.
- Your Content. You may upload and publish Your Content to the Services, subject to certain limitations:
(a) Limited License to Your Content. If You enter Your Content into the Services, or if Eagle Point enters Your Content into the Services on Your behalf, Eagle Point requires a limited license to Your Content only so that it can process the data and provide the Services to You. Therefore, by entering Your Content or making changes to existing Content into the Services, by whatever means, You hereby grant to Eagle Point, and any requisite licensors, a limited, irrevocable, royalty-free, and non-exclusive license during the Term to reproduce, adapt, modify, translate, publicly perform, publicly display, and distribute Your Content solely to enable Eagle Point to provide the Services to You. Any other use of Your Content shall require Your express written consent.
(b) Your Content Warranty. By accepting this Agreement, You represent and warrant that (a) You have the authority and right to transmit Your Content to Eagle Point; and (b) the use of Your Content will not infringe the intellectual property rights or other proprietary rights of any third party. You covenant that You will only supply Eagle Point with materials that You have the right to supply.
- Use of Content and Your Content at Licensee’s Risk. Eagle Point or licensors, including other Eagle Point Business Partners, shall have no responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of Content or Your Content, and Eagle Point shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Content or Your Content. You acknowledge that use of any Content or Your Content generated, obtained, or acquired through the use of the Services is at Your sole risk and discretion. Eagle Point and its licensors are not liable or responsible for any results generated using Content or Your Content.
- Term. Unless earlier terminated pursuant to Section 5 (a), the term of the subscription under this Agreement shall commence on the date of the invoice for the purchase of the Services and remain in effect for an initial period of one (1) year, unless a different period is agreed upon and specified in Your Order Form with Eagle Point (“Initial Term”). After the Initial Term, this Agreement will automatically renew for successive one-year periods (subject to the applicable Services Fees) (“Renewal Term(s), unless (i) otherwise agreed by the parties or (ii) terminated earlier by either party pursuant to Section 5(a).
(a) Termination. Either party may terminate this Agreement: (a) upon sixty (60) days written notice prior to the expiration of the Initial Term or the then-current Renewal Term; or (b) if the other party commits a material breach of this Agreement which is not cured within thirty (30) days after written notice thereof is given by the non-defaulting party.
(b) Effect of Termination. Upon any expiration or termination of this Agreement: (i) Licensee shall immediately cease using or otherwise accessing the Services and (ii) Eagle Point will immediately deactivate Licensee’s account(s) and any access thereto; and (c) thirty (30) days after the relevant termination or expiration date, Eagle Point may destroy all Content that has been uploaded or otherwise published to the Services; provided that during such period, Eagle Point may permit Licensee the ability to renew its access to the Services wherein all Your Content uploaded or published to the Services during the expiring term will remain accessible as though no expiration had taken place. The parties’ rights and obligations under Sections 2(a)-(h), 3, 4, 5, 6, 7, 8, 9, 10, as well as any obligations to make payments of fees and other amounts accrued prior to termination, shall survive any termination of this Agreement.
- Limited Warranty; Limitations of Liability.
(a) Dependencies. Licensee acknowledges and agrees that (a) the Services require access to and use of the Internet and that the Internet is an unregulated, public network over which Eagle Point exerts no control and (b) Eagle Point has no responsibility for operating and maintaining Licensee’s servers and their connection to the Internet to access and use the Services. Licensee further acknowledges that it is solely responsible for ordering and commissioning any required hardware to meet the minimum specifications published by Eagle Point in order to use and/or access the Services.
(b) Eagle Point warrants that the Services, under normal operation as set forth in the Documentation Eagle Point provides to Licensee, and when used as authorized herein, will perform substantially in accordance with the Documentation Eagle Point provides to Licensee (the “Limited Warranty”) during the applicable term as set forth in Section 5 (the “Warranty Period”). Eagle Point’s entire liability and Licensee’s exclusive remedy during the Warranty Period will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Eagle Point’s sole and exclusive option, (i) to attempt to correct or work around errors, if any, or (ii) at Eagle Point’s sole discretion, to refund the portion of license fees, if any, paid by Licensee for any remaining period in the applicable term and terminate this Agreement. Such refund is subject to (i) Licensee immediately ceasing access to the Services and (ii) the destruction or return to Eagle Point of any Content as directed by Eagle Point. Licensee is solely responsible for any and all expenses associated with any valid claims under the Limited Warranty described in this Section 6(b). Only where applicable, Licensee may be entitled to statutory rights and remedies under the law. Valid claims under the Limited Warranty may be submitted to Eagle Point at firstname.lastname@example.org or by calling +1-563-556-8392.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICE IS PROVIDED “AS IS” AND EAGLE POINT AND ITS LICENSORS, INCLUDING OTHER EAGLE POINT BUSINESS PARTNERS, HEREBY, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, IN CONNECTION WITH THE SERVICE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. With the exception of any statutory warranty or remedy that cannot be excluded or limited under law, IN NO EVENT WILL EAGLE POINT OR ITS LICENSORS, INCLUDING OTHER EAGLE POINT BUSINESS PARTNERS, BE LIABLE FOR ANY (i) DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE OR (ii) DAMAGES, REGARDLESS OF WHETHER THEY HAVE BEEN INFORMED OF SUCH DAMAGES. IN ADDITION, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, EAGLE POINT AND ITS LICENSORS, INCLUDING OTHER EAGLE POINT BUSINESS PARTNERS, SHALL NOT BE LIABLE UNDER ANY THEORY FOR (a) LOST, CORRUPTED OR INACCURATE DATA, CONTENT OR YOUR CONTENT OR (b) PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES, OR SERVICES. FOR FURTHER CLARIFICATION, NOTHING IN THIS SECTION 7 RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
(c) In no event shall Eagle Point or its licensors, including other Eagle Point Business Partners, be liable for any exemplary, special, incidental, indirect or consequential damages (including loss of profit, revenue, or data), arising out of or relating to this Agreement even if it has been advised of the possibility of such potential loss or damages, or for any interruption, inaccuracy, error or omission, regardless of cause, in the Services. In no event shall the aggregate liability of Eagle Point exceed the amount of license fees actually paid by You to Eagle Point during the preceding twelve (12) months prior to the incident(s) giving rise to the claim.
(d) COMPUTER-AIDED DESIGN SOFTWARE AND OTHER TECHNICAL SOFTWARE ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. THEY ARE NOT SUBSTITUTES FOR YOUR PROFESSIONAL JUDGMENT. COMPUTER-AIDED DESIGN SOFTWARE AND OTHER TECHNICAL SOFTWARE ARE INTENDED TO ASSIST WITH PRODUCT DESIGN AND ARE NOT SUBSTITUTES FOR INDEPENDENT TESTING OF PRODUCT STRESS, SAFETY AND UTILITY. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICE, THE SERVICE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH THEY MAY BE USED. EAGLE POINT SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICE. PERSONS USING THE SERVICE ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF THE SERVICE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICE AND THE SELECTION OF THE SERVICE, CONTENT, AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. PERSONS USING THE SERVICE ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY PROGRAM OUTPUT, INCLUDING ALL ITEMS DESIGNED BY USING THE SERVICE.
(e) THIS AGREEMENT PROVIDES USER WITH SPECIFIED LEGAL RIGHTS AND USER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. EAGLE POINT DOES NOT SEEK TO LIMIT USER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. TO THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF WARRANTIES, THE ABOVE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY OR EXCLUSIONS MAY NOT APPLY.
(f) Australian Licensees Only. Eagle Point’s goods/services come with guarantees that cannot be excluded under the Australian Consumer Law. Licensees are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. Licensees are also entitled to have the goods/services repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.
- Assignment; Amendment. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. Neither this Agreement nor any of the rights, interests or obligations under it shall be assigned, in whole or in part, by operation of law or otherwise by Licensee without the prior written consent of Eagle Point. In no event shall any assignment be to a competitor of Eagle Point without prior express approval, which Eagle Point may exercise at its sole option. Any assignment shall require the successor to be bound by the terms and conditions of this Agreement and any outstanding balances owed to Eagle Point up to the date of a valid transfer to be fully paid. All other transfers by Licensee shall be null and void. Eagle Point may assign this Agreement. This Agreement may only be changed, altered, or amended by Eagle Point at any time.
- Dispute Resolution, Governing Laws, Jurisdiction and International Arbitration.
(a) If a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds of termination thereof, the parties agree to first hold a meeting regarding the dispute, to attempt to negotiate in good faith a resolution prior to pursuing other remedies. If within thirty (30) days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.
(b) This Agreement will be governed by and construed in accordance with the laws of (i) the State of Delaware (and, to the extent controlling, the federal laws of the United States) if Licensee is located or acquired the Services in a country in the Americas (including the Caribbean) or any other country not specified in this Section 9 or (ii) the United Kingdom if Licensee is located in or acquired the Services in a country in Europe, Africa or the Middle East. The laws of such jurisdictions shall govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement.
(c) In addition, each party agrees that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the Superior Court of the State of Iowa, County of Dubuque, or the United States District Court for the Northern District of Iowa, except that if Licensee is located in a country in Europe, Africa or the Middle East, any such claim or dispute arising out of or relating to this Agreement shall be finally settled by arbitration administered by the “London Court of International Arbitration” “LCIA” under its Commercial Arbitration Rules. The arbitration tribunal will be composed of (3) arbitrators, of which the parties shall appoint one each, whereas the third arbitrator will be appointed by the court of arbitration. The place of arbitration shall be London, England. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(d) Nothing in the foregoing will prevent Eagle Point from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur.
- General Terms. Neither this Agreement nor any rights granted hereunder may be assigned, or otherwise transferred by Licensee, and any such attempted transfer shall be void without the advance written consent of Eagle Point, such consent not to be unreasonably withheld or delayed. To the extent that any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, such provision shall be without effect and the remainder of the Agreement shall be enforced to the full extent of the law. No action arising out of or related to this Agreement may be brought by either party more than one year after the cause of action was or reasonably should have been discovered or, in the case of an action for nonpayment, more than two years after the date the last payment was due. A waiver of any breach of this Agreement shall not constitute a waiver of any other breach or covenant of this Agreement. A waiver shall not be effective unless made in writing. Neither party shall be liable for any delay or failure due to acts of God, natural disaster, labor disputes, changes in government policy/law, riots, war, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, disruptions caused by the Internet or service providers, or other occurrences which are beyond either Party’s reasonable control (collectively, “Force Majeure”). If Eagle Point is delayed in the performance of any delivery of the Services or provision of anything else provided under this Agreement for reasons beyond its control, such delivery or services shall take place as soon as is reasonably possible.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Subscription License Agreement.
“Business Partner” – an entity authorized by Eagle Point that recommends, refers and/or sells subscriptions and related services for the Pinnacle Series Services.
“Content” means the pre-loaded content and any additional content made available via the Pinnacle Series Service that is accessible by Licensees as part of Your subscription to the Pinnacle Series Service, including any enhancements, improvement or new versions thereof. Such Content may be developed and provided by (i) Eagle Point directly, (ii) Content Partner(s) (if made available as Public Content) or (iii) Business Partners.
“Content Partner(s)” means the various third-party persons or entities identified by Eagle Point that develop Public Content for use with the Pinnacle Series Software and offered as part of the Pinnacle Series Service.
“Documentation” means Eagle Point’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via the Services.
“Licensee” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Licensees may include, for example, Your employees, consultants, contractors and agents acting on Your behalf for Your internal business purposes only.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Eagle Point or an authorized Business Partner, including any addenda and supplements thereto.
“Pinnacle Series Software” means the Eagle Point proprietary computer software platform and modules used or made available by Eagle Point to provide the Pinnacle Series Service and related documentation, including any enhancements, improvement or new versions thereof.
“Public Content” – content developed by Content Partners that is offered and made available via the Pinnacle Series Service to other Business Partners and Licensees.
“Services” means the Eagle Point Pinnacle Series Services consisting of the Pinnacle Series Software and Content.
“You” or “Your” means the individual, business, organization, government entity, institution, or other legal entity that purchased a subscription to the Pinnacle Series Service for its own in-house use for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Content” means content developed and used by You in conjunction with the Services, subject to the terms and conditions of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. YOU FURTHER AGREE THAT THIS AGREEMENT AND ORDER FORM ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND EAGLE POINT AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. PLEASE INDICATE THAT YOU HAVE READ AND THAT YOU UNDERSTAND AND ACCEPT THE FOREGOING TERMS AND CONDITIONS BY SELECTING THE “ACCEPT” OPTION BELOW.