End User License Agreement
This End User License Agreement (“Agreement”) is between Sensors & Software Inc. ( herein after referred to as “Sensors & Software,” “us” or “we” or “Provider”) and each person or entity registered to use the Provider’s Services (defined below). As used in this Agreement, “You” or “User” means the end user, whether under an individual or entity account registered to use the Services. Sensors & Software and the User are referred to in this Agreement individually as a “party” and collectively as the “parties.” In consideration of the mutual covenants, promises, terms, and conditions contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by each party, the parties agree to the following terms and conditions:
1) LEGALLY BINDING AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN USER AND PROVIDER. THIS AGREEMENT SETS FORTH THE TERMS THAT GOVERN USER’S USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, REGISTERING FOR AN ACCOUNT, AND/OR BY DOWNLOADING, INSTALLING, AND/OR ACCESSING THE SERVICES, YOU, THE USER, UNCONDITIONALLY AND EXPRESSLY ACKNOWLEDGE, REPRESENT AND AGREE THAT YOU: (A) ARE OVER 18 YEARS OF AGE; (B) HAVE READ AND UNDERSTAND THIS AGREEMENT AND OUR PRIVACY POLICY (https://www.sensoft.ca/privacy/), WHICH IS FULLY INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE; (C) UNDERSTAND THAT YOU ARE BOUND BY THIS AGREEMENT; AND (D) WILL COMPLY WITH THE TERMS OF THIS AGREEMENT AND ALL APPLICABLE LAWS AND REGULATIONS. 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 TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY PART OF THIS AGREEMENT, THEN YOU MAY NOT ACCESS OR USE THE SERVICES.
2) CHANGES TO THIS AGREEMENT. Provider reserves the right to change the terms of this Agreement and will make changes to it on a regular basis to reflect our current Services and our terms for use of the Services. If you do not agree to any changes to this Agreement, you may no longer use the Services.
3) BACKGROUND & PURPOSE OF AGREEMENT. Provider has developed and provides application Services that resides and operates on their GPR (ground penetrating radar) equipment and provides PC-Services that runs on client computers (“Services”). These Services support the use of Sensors & Software GPR equipment. User desires to obtain a license to use the Services to collect, process, store and/or download data for its business purposes. Provider is willing to grant User a license to use the Services pursuant to the terms and conditions of this Agreement, and User agrees to use the Services only in connection with the terms of this Agreement.
4) LICENSE. Subject to the terms of this Agreement, Provider grants You a personal, non-transferable, non-exclusive, limited license to use these Services for internal use only solely in accordance with the documentation on a single computer device. This license allows the User to make one copy of the Services in a machine-readable format for backup purposes only.
5) USE. User may use the Services as intended, including, as applicable, rights to upload, download, store, view, retrieve, query, serve, and execute User Data, and use the Services to upload User Data (“User Data” means the data or content User collects, uploads, processes or stores using the Services and any data entered into and/or generated by User using the Services, including any related metadata) , provided such User Data is owned, licensed or lawfully obtained by the User. User is solely responsible for the introduction and use of its User Data stored, processed and downloaded through the Services. User is responsible for ensuring it has all necessary rights and permissions to use the User Data, and that its User Data and use of the Services by User complies with the terms of this Agreement, any other agreements, and all applicable laws, including data protection and export control laws.
6) RESTRICTIONS. User shall not, and shall not permit any else to, without the express written consent of the Provider: (a) reverse engineer, reverse assemble, decompile, or disassemble any technology or Services included or used in the underlying the Services; otherwise attempt to discover the source code to any underlying technology or Services included in the Services; (b) translate or migrate any of the underlying technology or Services underlying the Services into another format, language, or hardware platform; (c) distribute, publish, sublicense, rent, lease, lend, sell or otherwise make available (by any means) the Services, and/or any portion of the Services and/or any features or functionality of the Services to a third party; (d) alter or remove any copyright, trademark or other proprietary notices on or within the Services, underlying Services or documentation; (e) create derivative works based upon the Services or underlying Services in whole or in part; (f) use the Services in a computer-based services business; (g) use the Services in multiple computer or multiple user arrangements; (h) develop or modify any Services based on ideas, processes or materials incorporated into the Services; and/or (i) knowingly permit any third party to do any of the foregoing.
7) OWNERSHIP. The Services and all underlying intellectual property or proprietary rights in the Services (including but not limited to all patents, trade-secrets, know-hows, copy rights, processes and facilities utilised by or on behalf of the Provider to provide the Services contemplated herein) shall remain the property of Provider, including the media on which the Services is contained. Provider retains ownership of the proprietary information contained within the Services as well as all copies of the Services made by you and the user manuals and other supporting materials.
8) TRADEMARKS & COPYRIGHTS. Certain portions of the Services may be branded with Provider’s or other third-party providers’ trademarks, logos and copyright notices. User agrees that it will not hide, remove, obscure, modify, use or otherwise change any such trademarks, logos or copyright notices.
9) MAINTENANC. Provider may release revisions to the Services. Such revisions may be made available free of charge or may require User to purchase an upgrade to their license to access these updates. We will use reasonable efforts to notify User of any new releases and provide the necessary access. Any new release, upon delivery to User, will constitute an element of the Service and will thereafter be subject to this Agreement, including without limitation the license, warranty, and limitation of liability terms.
10) TAXES. You will pay all taxes, including use and property taxes, due to your use of the Services.
11) WARRANTY. PROVIDER RELEASES THIS SERVICES WITHOUT ANY WARRANTY, GUARANTEE OR SUPPORT. TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE SERVICES ARE PROVIDED “AS IS.” PROVIDER, ITS LICENSORS, VENDORS AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN, MERCHANTABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR INFRINGEMENT, , AND PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. LIKEWISE, PROVIDER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, ACCESSIBILITY OR COMPLETENESS OF THE SERVICES. PROVIDER MAKES NO WARRANTY THE USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE; WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; OR THAT PROVIDER’S SECURITY MEASURES OR TECHNOLOGIES WILL BE ABLE TO PREVENT THIRD PARTY DISRUPTIONS OF THE SERVICES. USER ACKNOWLEDGES AND AGREES THAT ALL USE OF THE SERVICES IS AT USER’S OWN RISK AND USER ASSUMES ANY AND ALL RISK AND LIABILITY IN CONNECTION WITH ITS USE OF THE SERVICES.
12) LIMITATION OF LIABILITY. IN NO EVENT WILL PROVIDER BE LIABLE TO USER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE PROVISION, USE OR PERFORMANCE OF THE SERVICES REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PROVIDER BE LIABLE TO USER FOR ANY INTERRUPTION OR LOSS OF SERVICE, LOSS OF OR CORRUPTION OF DATA, LOSS OF REVENUES, LOSS OF PROFITS, OR LOSS OF BUSINESS OR GOODWILL ARISING OUT OF OR IN CONNECTION WITH USER’S USE OF, OR DELAYS, OR SYSTEM MALFUNCTION, OR SHUTDOWN, OR INABILITY TO USE, OR THE PERFORMANCE OR NON-PERFORMANCE OF, THE SERVICES OR THE UNDERLYING SOFTWARE. PROVIDER SHALL BE LIABLE FOR ANY LOSS OF DATA. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PROVIDER EXCEED THE AMOUNT OF PAID FOR USE OF THE SERVICES BY USER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED. IF YOU LIVE IN A JURISDICTION THAT DOES NOT ALLOW THE WAIVER OF CERTAIN WARRANTIES, OR LIMITATIONS OR DAMAGES WAIVERS DESCRIBED IN THIS SECTION OR IN SECTION 11, SOME OF THESE PROVISIONS MAY NOT APPLY TO YOU. YOU AGREE TO PROMPTLY NOTIFY PROVIDER IN WRITING IF YOU BELIEVE YOU HAVE ANY CLAIM AGAINST PROVIDER, AND YOU AGREE THAT ANY CLAIM YOU MAY HAVE AGAINST PROVIDER MUST BE BROUGHT WITHIN ONE YEAR AFTER IT ARISES (OR SUCH SHORTER PERIOD UNDER APPLICABLE STATUTES OF LIMITATION) OR IT SHALL BE WAIVED AND RELEASED.
13) USER INDEMNIFICATION. User shall indemnify and defend Provider and its parent company, affiliates, employees, agents, representatives and third-party service providers against any third party claims or threatened claims arising from or related to (i) User’s violation of any applicable law or regulation or violation of the legal rights of others, (ii) the User Data, including but not limited to any claim that the User Data is misused or infringes the rights of a third party, (iii) User’s use of the Services that exceeds the scope of the license granted in this Agreement, or (iv) User’s breach of this Agreement.
14) ASSIGNMENT. You may only transfer or assign this Agreement to a successor of your business that uses the Services. Any other transfer or assignment of this Agreement is null and void. This agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15) TERMINATION. This Agreement is effective until terminated. You may terminate it at any time by destroying the Services. Provider may also terminate it immediately at its sole discretion if you fail to comply with any term of this Agreement. Upon termination, you agree to destroy the Services.
16) GOVERNING LAW & DISPUTE RESOLUTION. (a) The laws of the Province of Ontario and the Federal Law of Canada applicable in the Province of Ontario govern this Agreement, without giving effect to any choice or conflict of law provisions or rules. Attorneys’ Fees. (b) The Parties agree to engage in good faith efforts to settle any disputes relating to this Agreement, any Order documentation, Privacy Policy, the Services and/or any User Data (hereinafter “Dispute”) by negotiations between them prior to engaging in any litigation. Such negotiations are to include, at a minimum, (i) written notice by the party asserting a dispute describing in detail the legal, evidentiary, and business bases of the dispute and any proposed remedy or solution; (ii) a written response to such notice describing in detail the receiving party’s disagreements, if any, with the sending party’s description of the bases of the Dispute and proposed remedy or solution; and (iii) one or more discussions between executives with authority to resolve the Dispute. Unless otherwise mutually agreed by the Parties in writing, the period for negotiation will be deemed ended forty-five (45) days after receipt of the initial written notice. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. If Provider seeks enforcement of its rights against User under this Agreement and prevails, User shall reimburse Provider for all costs, expenses and reasonable attorney fees incurred in connection with the dispute or litigation.
17) AUDIT RIGHTS. Provider may, in its sole discretion, audit your use of the Services under this Agreement at any time during the Term to ensure your compliance with this Agreement, provided that (i) any such audit shall be conducted during business hours on not less than thirty (30) days’ prior notice to you, and (ii) no more than one (1) audit may be conducted in any twelve (12) month period except for good cause shown. You shall reasonably cooperate with Provider personnel (and, if applicable, agents) conducting such audits and provide reasonable access requested by Provider to records, systems, equipment, information, and personnel, including machine IDs, serial numbers and related information. If the audit determines that the your use of the Services exceeds or exceeded the use permitted by this Agreement then, you shall, within thirty (30) days following the date of Provider’s written notification thereof, pay to Provider the retroactive license fees for such excess use, pay to Provider an additional ten percent (10%) penalty fee and, unless Provider terminates this Agreement, obtain and pay for a valid license to bring use into compliance with this Agreement.
18) EXPORT REGULATION. The Services and documentation may be subject to export control laws. You shall not, directly or indirectly, export, re-export or release the Services or documentation to, or make the Services or documentation accessible from any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation.
19) AGGREGATE DATA, ANONYMIZED DATA AND METADATA. User expressly agrees that Provider may collect aggregate data based on User’s use of the Services, and may utilize User Data so long as such data is anonymized and/or deidentified for our business purposes (collectively “Usage Data”). Provider shall be the sole owner of all such aggregated, anonymized and deidentified data. Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Services usage), and Provider will be free, during and after the Term hereof, to (i) use the Usage Data to improve and enhance the Services, and for other development, diagnostic and corrective purposes in connection with the Services and other Provider offerings, and (ii) disclose the Usage Data in aggregated or other de-identified form in connection with its business. All such aggregated data collected, used, and disclosed by Provider shall include only anonymous, non-personally identifiable information.
20) ACCESIBILITY. Subject to the provisions of Clause 11 and 12 hereof, should You have comments regarding the accessibility of the Services or would like to report an issue you are experiencing, please email us at Sensoft_service@spx.com. Provider shall, in good faith, attempt to resolve any accessibility errors within 90 days of notification thereof.
21) MISCELLANEOUS. (a) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (b) 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, provision of this Agreement, invalidate, render unenforceable such term, or provision in any other jurisdiction. (c)This Agreement, any Order Documentation, and Provider’s Privacy Policy, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these agreements shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.