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End-User License Agreement
IMPORTANT – PLEASE READ CAREFULLY. THIS DOCUMENT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE APPLICATION. BY ACCESSING AND USING THE APPLICATION, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS THE APPLICATION. IF YOU ARE ACCESSING AND USING THE APPLICATION IN PERFORMANCE OF SERVICES FOR AN ENTITY OR OTHERWISE REPRESENT THAT ENTITY, YOU WARRANT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF, AND YOUR ACCEPTANCE OF THIS AGREEMENT AND USE OF THE APPLICATION WILL NOT VIOLATE ANY AGREEMENT YOU HAVE WITH SUCH ENTITY. YOU UNDERSTAND YOU ARE BEING ISSUED A PERSONAL LICENSE AND ARE NOT TO SHARE APPLICATION ACCESS WITH ANYONE ELSE. YOU WILL BE ASKED TO PRESS THE ACCEPTANCE BUTTON AT THE END IN ORDER TO PROCEED TO APPLICATION ACCESS.
1.1 General Agreement. This End User License Agreement (“EULA”) is a legal agreement between You and Crimson Engineered Solutions, LLC (dba Certrec Corporation, Inc) (“Company”). This EULA governs Your use of Certrec’s web-based applications (“Application” or “Applications”). These Applications are known as Software-as-a-Service (SaaS) and are available via the internet. Company agrees to license the Application to You (personally and/or on behalf of your employer) (collectively “You” or “Your”) for your personal use only if you accept all the terms contained in this EULA. By using all or any portion of the Application, you accept and agree to be bound by all of the terms and conditions of this EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT USE THIS APPLICATION.
1.2 Provision of Service. In consideration of the fees paid by You for use of the subject Application, the Company agrees to provide You access to the subject Application, for the license term, subject to the conditions outlined herein.
2.1 License Grant. Company grants You a revocable, non-exclusive, non-transferable, limited right to use the Application on devices you personally control and use to connect to the internet and to access and use the Application on such devices strictly in accordance with the terms and conditions of this License, the Usage Rules, and any service agreement associated with your personal devices (collectively “Related Agreements”).
2.2 License Term. The initial term (“Initial Term”) of this Agreement will commence on the Effective Date and will terminate on the anniversary of the Effective Date based on the term of license selected by You. That term might be Monthly (days in the calendar month) or Annually (consisting of 12 months of a calendar year).
2.3 License Limitations. You shall use the Application strictly in accordance with the terms of the Related Agreements and shall not: (a) make the Application available over a network or other environment or in any way permit access or use by users other than You; (b) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (c) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (d) violate any applicable laws, rules or regulations in connection with Your access to or use of the Application; (e) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the Application; (f) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (g) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Company; (h) use the Application to send automated queries to any website or to send an unsolicited commercial e-mail; or (i) use any proprietary information or interfaces of Company or other intellectual property of Company in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.
3.1 Ownership and Confidentiality. The Application is licensed, not sold to you. Company owns all rights, title, and interest in the Application, including all copyright, patent, and other intellectual property or other proprietary rights in the Application. No title to or ownership of the Application or any associated intellectual property or proprietary rights are transferred to you by the Agreement. You acknowledge and agree that the Application used in connection with this agreement contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that the content or information presented to You through this Application may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except where expressly provided otherwise by the Company, nothing in the Application or this Agreement shall be construed to confer any license to any manufacturer’s, author’s, developer’s, vendor’s, and service provider’s (“Third-Party Vendors”), intellectual property rights, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks displayed in the Application and any other Vendor service marks, logos and product service names are marks of Vendor (the “Vendor Marks”). You agree not to display or use any Vendor marks, or the marks of any Third-Party Vendor, in any manner without the Company’s express prior written permission. YOU ARE EXPRESSLY PROHIBITED FROM DISCLOSING THE APPLICATION TO ANY PERSON OR ENTITY OR PERMITTING ANY PERSON OR ENTITY ACCESS TO OR USE OF THE SOFTWARE OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT.
3.2 Personal Information. You also acknowledge that when you access and use the Application, we have the right to automatically collect information on your use of the Application. All information collected from You in connection with the use of the Application will be protected from any public disclosure in accordance with our privacy commitment. By Your accessing and using the Application, You consent to Company’s collecting and use of your information for Company’s internal purposes only.
3.3 Infringement Acknowledgement. You and Company acknowledge and agree that, in the event of a third-party claim that the Application or Your possession or use of the Application infringes any third party’s intellectual property rights, You (and not Company) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement against You and Your company. You will, however, promptly notify the Company in writing of such a claim.
4.0 Termination. Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if you fail to comply with any terms and conditions of this License, including failure to pay Your subscription fee, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Company. Upon the termination of the License, Your access to the Application shall be closed by Company.
5.0 Disclaimers. You acknowledge and agree that the Application is provided on an “as is” and “as available” basis, and that your use of or reliance upon the application and any third-party content and services accessed thereby is at your sole risk and discretion. Company and its affiliates, partners, suppliers and licensors hereby disclaim any and all representations, warranties and guarantees regarding the Application and third-party content and services whether express, implied or statutory, and including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Furthermore, Company and its affiliates, partners, suppliers and licensors make no warranty that (1) the Application or third party content and services will meet your requirements; (2) the Application or third party content and services will be uninterrupted, accurate, reliable, timely, secure or error-free; (3) the quality of any products, services, information or other material accessed or obtained by you through the application will be as represented or meet your expectations; or (4) any errors in the Application or third party content and services will be corrected. No advice or information, whether oral or written, obtained by You from Company or from the Application shall create any contract between You and Company or any of its affiliates.
6.0 Limitation of Liability. Under no circumstances shall Company or its affiliates, partners, suppliers or licensors be liable for any indirect, incidental, consequential, special or exemplary damages arising out of or in connection with your access to or use of or inability to access or use the Application and any third-party content and services, whether or not the damages were foreseeable and whether or not Company was advised of the possibility of such damages. Without limiting the generality of the foregoing, Company’s aggregate liability to You (whether under contract, tort, statute or otherwise) shall not exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
7.1 Mutual Indemnification. Each party (the “Indemnifying Party”) agrees to defend at its expense and indemnify and hold harmless the other party and its affiliates, directors, officers, employees, agents, successors and assigns (each an “Indemnified Party”), in accordance with the procedures described in this Section, from and against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, “Losses”) arising from or in connection with any such third party claim for: (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party.
7.2 Infringement. Company will indemnify, defend and hold harmless You for Losses You incur as a direct result of any unaffiliated third party claim based on any claim that the Company infringes any U.S. copyright, trademark or trade secret, except to the extent resulting from (i) Your modification of the Application or combination by Company the Application with other products or services if the Application would not have been infringing but for such combination or modification, (ii) Your use of the Application in a manner not authorized herein or for which it was not designed, (iii) Your failure to use an updated non-infringing version of the applicable intellectual property to the extent You were notified that the update cured an infringement, (iv) changes to the Application made by Company at Your direction or (v) Your Data. If any item for which Company has an indemnification obligation under this Section becomes, or in Company’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Company will, in addition to indemnifying You as provided in this Section, promptly take the following actions, at no additional charge to You, in the listed order of priority: (a) secure the right to continue using the item or (b) replace or modify the item to make it non-infringing. If neither of such actions can be accomplished by Company using commercially reasonable efforts, and only in such event, Company will remove the item from the Application and the applicable fee will be equitably adjusted to reflect such removal. This Section states Company’s sole and exclusive remedy for Company’s infringement or misappropriation of intellectual property of a third party.
7.3 Customer Indemnification. You shall defend and indemnify Company and its Third-Party Vendors against any and all Losses incurred by Company and its Third-Party Vendors arising out of or in connection with a claim by a third party (i) alleging that Your Data or Your Trademarks, or any use thereof, infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Your breach of other Section of this agreement.
You will indemnify, defend and hold harmless Company, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof for damages, costs and attorneys’ fees Vendor incurs from any unaffiliated third-party claim arising from Your Content or Your use of the Application.
7.4 Indemnification Procedures. The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party’s failure to provide notification shall not affect the indemnifying party’s indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party’s ability to defend the applicable claim. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.
8.0 Assignment. You may not assign this Agreement without the prior written approval of the Company. Any purported assignment in violation of this section shall be void.
9.0 Governing Law. Any action related to this Agreement will be governed by the laws of Texas and any controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Application shall be subject to the exclusive jurisdiction of the state and federal courts located in Texas. This agreement represents the parties’ entire understanding relating to the use of the Application and supersedes any prior or contemporaneous, conflicting or additional communications.
10.0 Agreement Enforcement. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing.
11.0 Agreement Transfer. Company reserves the right to assign its right to receive and collect payments hereunder.
You hereby agree to all the provisions of this Agreement.