End User License Agreement for HoloMaps and Manifest
This End User License Agreement (the “Agreement”) sets forth the terms and conditions under which You are licensed to install and use the Licensed Software. This Agreement may be modified at any time and for any reason.
YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING THIS AGREEMENT BY: A) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT; B) EXECUTING AN ORDER FORM; C) ACCESSING OR USING THE SOFTWARE; OR D) ACCESSING OR USING ANY COMPLIMENTARY OR TRIAL PRODUCTS OR SERVICES THAT MAY OR MAY NOT BE PROVIDED AT FREE OF CHARGE.
1. Definitions. All other defined terms not listed in this section are defined in their respective sections or in the applicable Supplemental Terms and apply to the Agreement as a whole:
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person.
“Authorized User” means each of the individuals authorized to use the Licensed Software pursuant to terms and conditions of this Agreement.
“Business Day” means a day other than a Saturday, Sunday or another day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Connect-Only User” means an Authorized User that can communicate with other Authorized Users to troubleshoot problems.
“Controlled Technology” means any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the US Export Administration Act and its associated regulations.
“Documentation” means any and all manuals, instructions and other documents and materials that Taqtile provides or makes available to You in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“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.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Licensed Software” means Taqtile software that is provided to You and made available by Taqtile subject to the terms and conditions of this Agreement, together with any respective Maintenance Releases provided to You pursuant to this Agreement.
“Loss” means 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 and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Licensed Software, including any updated Documentation, that Taqtile may provide to You from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Licensed Software, but does not include any New Version.
“Mobile User” means an Authorized User of a mobile application that can view content, communicate with other Authorized Users, and perform jobs and contribute to the job history database.
“New Version” means any new version of the Licensed Software that Taqtile may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Taqtile’s designation of a new version number), and which Taqtile may make available to You at an additional cost under a separate written agreement.
“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors and legal advisors.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Taqtile, including any third-party: (a) documents, data, content or specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
“View-Only User” means an Authorized User that can view content without ability to edit or perform jobs which contribute to the database record of activities associated to assets and work procedures.
2.1 License Grant. Subject to the terms and conditions of this Agreement, and conditioned on Your compliance herewith, Taqtile hereby grants to You, during the Term, a non-exclusive, non-sublicensable and non-transferable, limited license to install, use, and run the Licensed Software and Documentation: a) if You are a Connected-Only User, solely to receive and send communications with Authorized Users to troubleshoot problems (the “Connect-Only User Permitted Use”); b) if You are a View-Only User, solely to consume user-generated content in the Licensed Software, but excluding editing or performing jobs to contribute to the database record of activities associated to assets and work procedures (the “View-Only User Permitted Use”); or c) if You are a Mobile User, solely to receive and send communications with Authorized Users, consume and contribute to user-generated content in the Licensed Software, and perform jobs and contribute to the job history database (the “Mobile User Permitted Use”) (collectively, the “Permitted Use”).
2.2 Sole Responsibility. You agree to comply with all laws and regulations applicable to the gathering, processing, storing, transmitting, and dissemination of business or personal information.
3. Use Restrictions. Except as this Agreement expressly permits, You shall not, and shall not permit any other Person to:
(a) copy the Licensed Software, in whole or in part;
(b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Licensed Software;
(c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(d) reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part;
(e) bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation;
(f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation;
(g) use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other rights of any Person, or that violates any applicable Law;
(h) use the Licensed Software for purposes of: (i) benchmarking or competitive analysis of the Licensed Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Taqtile’s detriment or commercial disadvantage;
(i) use the Licensed Software in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Licensed Software could lead to personal injury or severe physical or property damage; or
(j) use (i) the Licensed Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.
4. Maintenance. During the Term, Taqtile may provide You with Maintenance Releases (including updated Documentation) that Taqtile may, in its sole discretion, make generally available at no additional charge. All Maintenance Releases, on being provided by Taqtile to You hereunder, are deemed Licensed Software subject to all applicable terms and conditions in this Agreement. You agree to install all Maintenance Releases as soon as practicable after receipt. You do not have any right hereunder to receive any New Versions of the Licensed Software that Taqtile may, in its sole discretion, release from time to time.
5. Alterations to the Licensed Software. Taqtile may change, modify, suspend, or discontinue any aspect of the Licensed Software at any time, including removing features or revising the effectiveness of certain features in an effort to improve the overall performance of the Licensed Software. Taqtile may also impose limits on certain features or restrict Your access to parts or all of the Licensed Software without notice or liability.
6. Security Measures and Consent to Monitor.
6.1 The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software. You acknowledge and agree that: (a) Taqtile may use these and other lawful measures to monitor your computer or device’s memory to verify Your compliance with the terms of this Agreement and enforce Taqtile’s rights, including all Intellectual Property Rights, in and to the Licensed Software; (b) Taqtile may deny Your access to and/or use of the Licensed Software if Taqtile, in its sole discretion, believes that Your use of the Licensed Software would violate any provision of this Agreement.
7. Intellectual Property Rights.
7.1. Ownership. You acknowledge and agree that:
(a) the Licensed Software and Documentation are licensed, not sold, to You by Taqtile and You do not and will not have or acquire under or in connection with this Agreement any ownership interest in the Licensed Software or Documentation, or in any related Intellectual Property Rights;
(b) Taqtile and will remain the sole and exclusive owner of all right, title and interest in and to the Licensed Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open-Source Components and the limited license granted to You under this Agreement; and
(c) You hereby unconditionally and irrevocably assign to Taqtile or Taqtile’s designee, the entire right, title and interest in and to any Intellectual Property Rights that You may now or hereafter have in or relating to the Licensed Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
7.2. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to You any Intellectual Property Rights or other rights, title, or interest in or to any of the Licensed Software or Documentation.
8. Term and Termination.
8.1. Term. This Agreement is effective as of the date of acceptance of this Agreement (the “Effective Date”), and shall remain in effect for as long as you continue using the Licensed Software, unless earlier terminated (the “Term”). In the event that Taqtile chooses to cease providing the Licensed Software or licenses a third party the right to provide the Licensed Software, Taqtile may, but is not obligated to, provide you with prior notice.
8.2. Termination. Taqtile reserves the right to terminate this Agreement at any time for any reason, or for no reason, with or without notice to You.
8.3. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement, all rights, licenses, and authorizations granted to You hereunder will immediately terminate and You shall immediately cease all use of and other activities with respect to the Licensed Software and Documentation.
8.4. Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 8.4, Section 1 (Definitions), Section 6 (Confidentiality), Section 7 (Intellectual Property Rights), Section 9 (Representations and Warranties), Section 10 (Indemnification), Section 12 (Disclaimer of Warranties), and Section 14 (Miscellaneous).
9. Representations and Warranties.
9.1. Limited Warranty. Subject to the limitations and conditions set forth herein, Taqtile warrants to You that for a period of thirty (30) days from the first date the Licensed Software is first installed on Your device (the “Warranty Period”) the Licensed Software will substantially conform in all material respects to the specifications set forth in the Documentation when installed, operated and used as recommended in the Documentation and in accordance with this Agreement.
9.2. Requirements. The limited warranties set forth herein apply only if You: (a) notify Taqtile in writing of the warranty breach before the expiration of the Warranty Period; (b) promptly installed all Maintenance Releases to the Licensed Software that Taqtile previously made available to You; and (c) as of the date of notification, You are in compliance with all terms and conditions of this Agreement.
9.3. Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth herein does not apply to problems arising out of or relating to:
(a) Licensed Software, or the media on which it is provided, that is modified or damaged by You;
(b) any operation or use of, or other activity relating to, the Licensed Software other than as specified in the Documentation, including any incorporation in the Licensed Software of, or combination, operation or use of the Licensed Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Your use in the Documentation;
(c) Your negligence, abuse, misapplication or misuse of the Licensed Software, including any use of the Licensed Software other than as specified in the Documentation;
(d) Your failure to promptly install all Maintenance Releases that Taqtile has previously made available to You;
(e) the operation of, or access to, Your system or network or a third party’s system or network;
(f) any Open-Source Components, beta software, software that Taqtile makes available for testing or demonstration purposes, temporary software modules or software for which Taqtile does not receive a license fee;
(g) Your breach of any provision of this Agreement;
(h) any Third-Party Material failure; or
(i) any other circumstances or causes outside of the reasonable control of Taqtile (including abnormal physical or electrical stress).
9.4. Remedial Efforts. If Taqtile breaches, or is alleged to have breached, any of the warranties set forth in herein, Taqtile may, at its sole option and expense, take any of the following steps to remedy such breach:
(a) replace any damaged or defective media on which Taqtile supplied the Licensed Software;
(b) amend, supplement or replace any incomplete or inaccurate Documentation;
(c) repair the Licensed Software;
(d) replace the Licensed Software with functionally equivalent software (which software will, on its replacement of the Licensed Software, constitute Licensed Software hereunder); and/or
(e) terminate this Agreement.
9.5. Sole Remedy. If Taqtile does not cure a warranty breach or terminate this Agreement as provided in herein within a commercially reasonable period of time after Taqtile’s receipt of written notice of such breach, You shall have the right to terminate this Agreement. THIS SECTION SETS FORTH THE YOUR SOLE REMEDY AND THE TAQTILE’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY TAQTILE WARRANTY OF THE LICENSED SOFTWARE OR DOCUMENTATION SET FORTH IN THIS AGREEMENT.
9.6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH HEREIN, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY TAQTILE ARE PROVIDED “AS IS.” TAQTILE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TAQTILE MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY OTHER TAQTILE OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
10. Indemnification. You hereby agree to defend and indemnify Taqtile, its parent, subsidiaries, licensors, and affiliates against and from any third-party claims, liabilities, losses, injuries, damages, costs, or expenses incurred by Taqtile arising out of or from Your use of the Licensed Software or any specific services or features associated therewith.
11. Mitigation. If the Licensed Software, or any part of the Licensed Software, is, or in Taqtile’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Your use of the Licensed Software is enjoined or threatened to be enjoined, Taqtile may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Licensed Software, effective immediately on written notice to You, in which event You shall cease all use of the Licensed Software and Documentation immediately on receipt of Your notice.
12. EXCLUSION OF DAMAGES. IN NO EVENT WILL TAQTILE, ITS PARENT, SUBSIDIARIES, LICENSORS, AND AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, OR (g) DEATH, BODILY INJURY, OR DAMAGE TO TANGIBLE PROPERTY, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, TAQTILE’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
13. Force Majeure. In no event will Taqtile be liable or responsible to You, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Taqtile’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) days or more.
14.1. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other forms of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.2. Notices. Any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such addressee party may designate from time to time in accordance with this section):
All notices given by You under this Agreement shall be in writing and addressed to: Taqtile, Inc., 107 Spring Street, Seattle, Washington 98104, Attn: Legal.
All notices given by Taqtile under this Agreement shall be given to You either through written notice, email, or website blog post.
Notices sent in accordance with this section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.3. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
14.4. Assignment. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under this Agreement without Taqtile’s prior written consent. Any purported assignment, delegation or transfer in violation of this section is null and void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
14.5. Severability. If any 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. On such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
1r4.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington 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 Washington. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and County of King, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other documents by mail to such Party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
14.7. Equitable Remedies. You acknowledge and agree that Your breach or threatened breach of this Agreement would cause Taqtile irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Taqtile will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.