This End User License Agreement & Online Terms of Service, including the applicable Order (defined below) which is hereby incorporated by reference, constitutes a binding agreement between FieldEquip, Inc. (“FieldEquip”) and Customer (defined below) (collectively, the “Agreement”).
FIELDEQUIP PROVIDES THE SOFTWARE, SERVICES AND DOCUMENTATION TO CUSTOMER AND ITS AUTHORIZED USERS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER AND EACH OF ITS AUTHORIZED USERS ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, CHECKING THE “ACCEPT” BOX ON THE ORDER FORM, OR OTHER MEANS PROVIDED FOR ACCEPTANCE YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, FIELDEQUIP WILL NOT AND DOES NOT LICENSE OR OTHERWISE PROVIDE THE SOFTWARE, SERVICES OR DOCUMENTATION TO CUSTOMER OR ITS AUTHORIZED USERS AND YOU MAY NOT ACCESS OR USE THE SOFTWARE, SERVICES OR DOCUMENTATION FOR ANY PURPOSE.
From time to time, FieldEquip may modify the Software or Services by adding or removing features and functionalities without prior notice to Customer or its Authorized Users. Except as expressly provided in the Order, FieldEquip also may revise this Agreement from time to time in FieldEquip sole discretion, subject to applicable law. All future access and use of the Software or Services by Customer and its Authorized Users will be subject to the version of this Agreement in effect at the time of such access or use. If FieldEquip revises this Agreement, FieldEquip will post the revised version on its website. Customer will be free to decide whether or not to accept the revised version of this Agreement but accepting the revised Agreement will be required for Customer and its Authorized Users to continue accessing or using the Software or Services. IF CUSTOMER DOES NOT AGREE TO THE REVISED VERSION OF THIS AGREEMENT, CUSTOMER’S SOLE RECOURSE WILL BE TO TERMINATE ALL ACCESS OR USE OF THE SOFTWARE OR SERVICES BY CUSTOMER AND ITS AUTHORIZED USERS.
For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means the individual persons authorized to use the Software and Services in accordance with the applicable Order.
“Documentation” means user manuals, technical manuals and any other materials provided by FieldEquip, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software or Services.
“Fees” means the fees, including all taxes thereon, paid or required to be paid by Customer under this Agreement.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Customer” the person or entity identified as such on the applicable Order.
“Order” means the written or electronic order, submitted on behalf of Customer and accepted by FieldEquip, that identifies the applicable Software or Services and associated Fees, billing and payment terms.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the software programs for which Customer is granted a license, as identified in the applicable Order.
“Services” the online services and information made available by FieldEquip to Authorized Users, as identified in the applicable Order.
“Third Party” means any Person other than Customer or FieldEquip.
2. Use of Software and Services
Subject to and conditioned upon Customer’s payment of the Fees and strict compliance by Customer and each its Authorized Users with all terms and conditions set forth in this Agreement, FieldEquip hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement and the applicable Order. This limited license grants Customer the right, exercisable solely by and through Customer’s Authorized Users, to use the Software and related Documentation solely for Customer’s internal business purpose.
3. Use Restrictions
Customer shall not, and shall ensure that its Authorized Users shall not to, directly or indirectly:
- use (including make any copies of) the Software, Services or Documentation beyond the scope of the limited rights set forth in Section 2;
- provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Customer, other than Authorized Users with access to or use of the Software, Services or Documentation;
- copy the Software, Services or Documentation, in whole or in part, or modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software, Services or Documentation or any part thereof;
- combine the Software, Services or Documentation or any part thereof with, or incorporate the Software, Services or Documentation or any part thereof in, any other software, services or other works;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or Services or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software, Services or Documentation, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, Services or Documentation, or any features or functionality of the Software, Services or Documentation, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
- use the Software, Services or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including: (1) power generation systems; (2) aircraft navigation or communication systems, air traffic control systems or any other transport management systems; (3) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and (4) military or aerospace applications, weapons systems or environments;
- use the Software, Services or Documentation in violation of any law, regulation or rule;
- use the Software, Services or Documentation for purposes of competitive analysis, the development of a competing software product or service or any other purpose that is to FieldEquip commercial disadvantage.
- participate in any action that, in the sole and absolute opinion of FieldEquip, results or may result in fraud or otherwise interfere in any way with use of the Software, Services or Documentation;
- use or exploit any errors in design, features which have not been documented, or “bugs” to gain access in any way that is not generally known and intentionally made available by FieldEquip, and you will promptly report to FieldEquip your discovery of any such errors, features or bugs.
- attempt to harvest any account information, pricing or any confidential or proprietary business information from the Service for any purpose;
- collect or store personal information about any other individual on the Service, or otherwise stalk, repeatedly contact or harass another user;
- impersonate any other person, adopt a false identity, or misrepresent a relationship with any person or entity, including misrepresenting a relationship with FieldEquip, or attempt to deceive or defraud another;
- manipulate the Service so as to hide your identity or participation in the Service (by using another person’s identity, changing headers, or otherwise modifying any other possible identifier); or
- post or upload any content that contains any viruses, cancel bots, Trojan horses, harmful code, or other computer programs or code designed to interrupt the Service, or the proper functioning of any software, hardware or equipment or materials used in connection with the Service;
4. Responsibility for Use
Customer is responsible and liable for all uses of the Software, Services or Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software, Services or Documentation by its Authorized Users or by any other Person to whom Customer or an Authorized User may provide access to or use of the Software, Services or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5. Compliance Measures
- The Software, Services or Documentation may contain technological copy protection or other security features designed to prevent or disable unauthorized use of the Software, Services or Documentation, including features to protect against any use of the Software, Services or Documentation that is prohibited under Section 3. Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
- During the Term, FieldEquip may, in FieldEquip sole discretion, audit Customer’s use of the Software, Services or Documentation to ensure Customer’s compliance with this Agreement. FieldEquip also may, in its sole discretion, audit Customer’s systems within 24 months after the end of the Term to ensure Customer has ceased use of the Software, Services or Documentation and removed the all copies from such systems as required hereunder. The Customer shall fully cooperate with FieldEquip personnel conducting such audits and provide all access requested by FieldEquip to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information.
6. Maintenance and Support
- Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as FieldEquip makes generally available free of charge to other customers of the Software then entitled to maintenance and support services. FieldEquip may develop and provide Updates in its sole discretion, and Customer agrees that FieldEquip has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Customer acknowledges that FieldEquip may provide some or all Updates via download from a website designated by FieldEquip and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. FieldEquip has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that FieldEquip may issue as a separate or new product, and FieldEquip may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
- FieldEquip reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Customer’s registration of the copy of Software for which support is requested. FieldEquip has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if Customer is in breach under this Agreement; or (iv) for any Software that has been modified other than by FieldEquip, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by FieldEquip in writing.
7. Collection and Use of Information
- Customer and each of its Authorized Users acknowledges that FieldEquip may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software, Services or Documentation, including, but not limited to, information and about any devices or equipment on or through which the Software, Services or Documentation are accessed or used. Without limiting the generality of the foregoing, Customer acknowledges that Software and Services contain or may contain in future versions automated reporting routines that will automatically identify and analyze certain aspects of use and performance, as well as the operator and operating environment, and among other things, transmit electronic reports to FieldEquip. FieldEquip will provide Customer, on request, with a description of these routines in the Software and Customer agrees not to disrupt or interfere with them without prior written authorization by FieldEquip. FieldEquip will be entitled to inspect the installation and configuration of the Software from time to time on reasonable notice
- Customer agrees that FieldEquip may use such information for any purpose, including, but not limited to, improving the performance of the Software or Services or developing Updates, verifying Customer’s compliance with the terms of this Agreement and enforcing FieldEquip rights, including FieldEquip Intellectual Property Rights.
8. Intellectual Property Rights
- Customer acknowledges and agrees that the Software, Services and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software, Services or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the rights granted, and subject to all terms, conditions and restrictions, under this Agreement. FieldEquip and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, Services and Documentation and all Intellectual Property Rights arising out of or relating to the Software, Services and Documentation, except for the limited rights expressly granted to the Customer in this Agreement. Customer shall safeguard all Software, Services and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Customer shall promptly notify FieldEquip if Customer becomes aware of any infringement of FieldEquip Intellectual Property Rights and fully cooperate with FieldEquip in any legal action taken by FieldEquip to enforce its Intellectual Property Rights.
- FieldEquip shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Software, Services or Documentation infringes any Third Party Intellectual Property Rights and shall pay any final judgment awarded or settlements entered into; provided that Customer gives prompt written notice to FieldEquip of any such claim, action or allegation of infringement and gives FieldEquip the authority to proceed as contemplated herein. FieldEquip will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of FieldEquip . Customer shall give such assistance and information as FieldEquip may reasonably require settling or oppose such claims. In the event any such infringement, claim, action, or allegation is brought or threatened, FieldEquip may, at its sole option and expense: (i) procure for Customer the right to continue use of the infringing portion; (ii) modify or replace the infringing portion thereof in a manner that is non-infringing; or (iii) if neither of the foregoing is commercially practicable, FieldEquip shall refund a prorated portion of the prepaid Fees, if any, paid with respect to such infringing portion. In the event that such refund is made, Customer shall immediately cease using the infringing portion and will remove the same from its system and so certify to FieldEquip. By paying a refund in the manner herein contemplated FieldEquip will be released from any further obligation whatsoever to Customer in connection with the infringing portion. The foregoing obligations shall not apply to the extent the infringement arises as a result of modifications made by any person other than FieldEquip or FieldEquip authorized representative. THE REMEDIES SET FORTH IN THIS SECTION 8(B) ARE CUSTOMER’S SOLE REMEDIES AND SITEPRO’S SOLE LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
9. Term and Termination
- This Agreement and the rights and licenses granted by FieldEquip hereunder shall remain in effect for the term set forth on the Order or until earlier terminated as set forth herein (the “Term”).
- Customer may terminate this Agreement by ceasing to use the Software, Services and Documentation and destroying any and all copies thereof.
- FieldEquip may terminate this Agreement, effective upon written notice to Customer, if Customer, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 15 days after FieldEquip provides written notice thereof.
- FieldEquip may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- Upon expiration or earlier termination of this Agreement, the rights and licenses granted by FieldEquip hereunder shall also terminate, and Customer shall cease using the Software, Services and Documentation and shall destroy any and all copies thereof.
10. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
- in no event will FieldEquip or its affiliates, or any of its or their respective licensors or service providers, be liable to customer or any third party for any use, interruption, delay or inability to use the software, services or documentation, lost revenues or profits, delays, interruption or loss of goods, services, business or goodwill, loss or corruption of data, loss resulting from system or service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, incompatibility or provision of incorrect compatibility information or breaches in security, or for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of or in connection with this agreement, breach of contract, warranty, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not FieldEquip was advised of the possibility of such damages.
- in no event will FieldEquip and its affiliates’, including any of its or their respective licensors’ and service providers’, collective aggregate liability under or in connection with this agreement or its subject matter, under any legal or equitable theory, including breach of contract, warranty, tort (including negligence) and strict liability.
- the limitations set forth in section 10(a) and section 10(b) shall apply even if the customer’s remedies under this agreement fail of their essential purpose.
11. Export Regulation
The Software, Services or Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Customer shall not, directly or indirectly, export, re-export or release the Software, Services or Documentation to, or make the Software, Services or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Customer 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 Software, Services or Documentation available outside the US.
- This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Texas.
- FieldEquip will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Customer equipment, loss and destruction of property or any other circumstances or causes beyond FieldEquip reasonable control.
- Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without FieldEquip prior written consent, which consent FieldEquip may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which FieldEquip prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15(e) is void. FieldEquip may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- No waiver by FieldEquip of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by FieldEquip. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- For purposes of this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: to sections and exhibits refer to the sections of, and exhibits attached to, this Agreement; to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Each Order and all schedules and exhibits attached or referred to herein or therein and all other documents that are incorporated by reference herein or therein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
- The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.