THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCEPTING
IT AS IT GOVERNS YOUR USE OF SOFTWARE CALLED AXIS AND ITS PROPRIETARY
AND ASSOCIATED DOCUMENTATION (“SOFTWARE”), THIS WEBSITE LOCATED
THIS AGREEMENT OR BY SELECTING THE
“I ACCEPT” BUTTON BELOW, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT.
YOU AGREE THAT THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BY AND
BETWEEN PIVOTAL ENERGY SOLUTIONS, LLC
(“LICENSOR”) AND YOU (“LICENSEE”) AND IS ENFORCEABLE LIKE ANY
WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. DO NOT SIGN OR SELECT
“I ACCEPT” UNTIL YOU HAVE CAREFULLY READ AND AGREED TO THE FOLLOWING
TERMS AND CONDITIONS. YOU MAY AT ANY TIME SELECT
“I DECLINE” AND EXIT THIS WEBSITE OR SOFTWARE OR WITHHOLD YOUR SIGNATURE.
- Grant Of License. Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicenseable, limited license in United States (the "License"), for the term set forth in Section 4, to use the Products. The foregoing license grant is subject to the restrictions below and the other terms and conditions of this Agreement.
- Prohibited Conduct. Except to the extent otherwise expressly permitted hereunder or otherwise by separate agreement, and without limitation, the following restrictions shall apply to Licensee’s use of the Products: (a) Licensee may not copy or reproduce any portion of the Products; (b) Licensee may not change, alter, modify, or create derivative works, enhancements, extensions, or add-ons to the Products; (c) Licensee may not decompile, reverse engineer, or disassemble any part of the Products, in whole or in part; (d) Licensee may not assist any third party in engaging in any activity prohibited by this Agreement; and (e) Licensee will at all times comply with, and will not circumvent or attempt to circumvent, any of the restrictions on use set forth in this Section 2 or elsewhere in this Agreement.
- Confidentiality Obligations.
- Confidential Information. Licensee acknowledges that the Website, the Database, and the Software embodies, includes, provides, and contains valuable trade secrets and confidential information owned by Licensor. “Confidential Information” shall include but not limited to, employee, supplier, and competitor information; blueprints, drawings, and other designs and concepts; know-how and other methods; purchasing, cost, pricing, profitability, and other financial information; research and development, marketing, sales, contractual and other business plans and techniques; policies and training materials; inventions (whether patentable or not), works of authorship (whether copyrightable or not), trade secrets, the functionality of the Website, the Software, and the Database, the appearance, content and flow of the user interface of the Website and the Software. Licensee also acknowledges that some or all of the Confidential Information may be located or stored in the Databases accessible to Licensee from, through, or using the Website and/or the Software. Confidential Information does not include any information that is publically available through or from third parties.
- Non-Disclosure. All Confidential Information will remain the property of the disclosing Party (except for the Information, whose ownership is set forth in Section 6), and the receiving or non-owing Party will not be deemed by virtue of its access to the Confidential Information of the disclosing or owning Party to have acquired any right or interest in or to any such Confidential Information, other than as specifically set forth herein. The receiving or non-owning Party agrees: (i) to hold the Confidential Information of the disclosing or owning Party in strict confidence and to safeguard the Confidential Information of the disclosing or owning Party with the care that the receiving or non-owning Party uses to protect its own Confidential Information, but in no case less than a reasonable degree of care; (ii) except as expressly authorized in this Agreement, not to disclose any Confidential Information of the disclosing or owning Party to any third party, other than employees and independent contractors of the receiving or non-owning Party who have a need to know the Confidential Information of the disclosing or owning Party for the purposes of this Agreement and who are subject to a written confidentiality agreement that affords at least as much protection to the Confidential Information of the disclosing or owning Party as this Section 5; (iii) to use the Confidential Information of the disclosing or owning Party solely and exclusively in accordance with the terms of this Agreement in order to carry out the receiving or non-owning Party’s obligations and exercise its rights under this Agreement; and (iv) to notify the disclosing or owning Party promptly of any unauthorized use or disclosure of the Confidential Information of the disclosing or owning Party and to cooperate with and assist the disclosing or owning Party in every reasonable way to stop or minimize such unauthorized use or disclosure.
- Personally Identifiable Information. Licensor shall treat any personally identifiable information (e.g., name and phone number) that it receives of Licensee as Confidential Information and in compliance with Licensor’s obligations under this Agreement, including, but not limited to, those set forth in Section 3(b) and applicable laws, rules, and regulations regarding personally identifiable information. However, Licensor may share personally identifiable information when Licensee signs an agreement allowing Licensor to release their personally identifiable information.
- Injunction. Both Parties agrees that if a court of competent jurisdiction determines that the Party receiving the Confidential Information has breached, or attempted or threatened to breach, its confidentiality obligations under this Agreement, the disclosing or owning Party will be entitled to obtain appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations. Such injunctive relief or other measures will be in addition to, and not in lieu of, any other rights and remedies available to the disclosing or owning Party.
- Term and Termination. The terms of this Agreement shall continue unless terminated as provided in this Section. This Agreement will terminate automatically, without notice or liability to Licensee or any third party, in the event of a material breach by Licensee of any of the agreed upon terms and conditions stated herein. In addition, (i) Licensor may decide, on its own, to terminate this Agreement at any time in its sole and absolute discretion, by written or electronic notice to Licensee, in which event this Agreement shall terminate on the date specified in such notice; and (ii) at Licensor’s discretion, the Website, the Database, and/or the Software may be designed to cease to function after a period of time has elapsed and, in such event, this Agreement will terminate automatically when the Website, the Database, and/or the Software ceases to function. Upon termination of this Agreement, Licensee shall immediately cease any and all use of the Website, the Database, and/or the Software and any confidential information and shall promptly destroy or return all such material to Licensor.
- Survival. The provisions of Sections 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, and this Section 5 shall survive any termination of this Agreement. The confidentiality obligations under Section 3 herein shall be effective until Licensor ceases to keep the Confidential Information confidential. Further, Recipient’s confidentiality obligations under Section 3 shall not be affected by bankruptcy, assignment, attachment, or seizure procedures, whether initiated by or against Licensee, nor by the rejection of any agreement between Licensor and Licensee, by a trustee of Licensee in bankruptcy, or by the Licensee as a debtor in possession or the equivalent of any of the foregoing under local law.
- Collected Information Ownership. Licensor may collect and summarize the data in the aggregate for analytics (“Collected Data”) using the Software, the Website, or other means, and store the Collected Data in the Database or a different database. Any data or information collected and/or compiled by Licensor under this Agreement shall be performed in such a manner that (a) no Personally Identifiable Information may be derived therefrom, and (b) the results of any Collected Data shall not include any Personally Identifiable Information. If Licensee owns any or all of the Collected Data, Licensee hereby grants to Licensor a perpetual, non-exclusive, irrevocable, worldwide, royalty-free, and sublicenseable right and license to use such data or information included in the Collected Data for any business purpose. Licensor’s use of the Collected Data shall comply with the confidentiality obligations in Section 3(c).
- Intellectual Property Protection. The Website, the Software, and the Database, are intellectual property of and are owned by Licensor. The Information may be intellectual property of and may be owned by Licensor. The structure, organization, and code of the Website, the Software, and the Database (and portions of the Information owned by Licensor) are valuable trade secrets and confidential information of Licensor and are protected by law including, without limitation, the copyright laws of the United States and other countries, by applicable international treaty provisions. Licensor retains ownership of its intellectual property rights in, to, and under the Website, the Software, the Database, and the Information (as applicable), and Licensee may not obtain any rights therein by virtue of this Agreement or otherwise, unless expressly stated herein.
- Representations and Warranties by Licensee. Licensee represents and warrants to Licensor that: (i) Licensee has the full power and authority to enter into and perform its obligations under this Agreement; (ii) Licensee’s assent to and performance of its obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which Licensee is bound, or any applicable laws, regulations or rules; (iii) all information provided by Licensee is accurate and current and will be updated by Licensee to remain current; (iv) this Agreement constitutes legal, valid and binding obligations on Licensee, enforceable in accordance with its terms and conditions; (v) Licensee will comply with all applicable laws, rules and regulations in its use of the Website, the Software, and/or the Database, as well as the agreed upon terms of this Agreement; and (vi) Licensee understand and acknowledge that Licensor may terminate this Agreement as provided in Section 4 of this Agreement.
- Indemnification. Licensee agrees to indemnify and hold Licensor and its employees, representatives, agents, attorneys, affiliates, directors, officers, members, managers and shareholders (collectively, the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties alleging facts or circumstances that would constitute a breach of any provision of this Agreement by Licensee. Licensee agrees to indemnify, defend and hold harmless the Indemnified Parties from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees and costs) or damages resulting from (either directly or indirectly) any of the following: (a) any claim by any third party that the data in the Database (but expressly excluding any data in the Database entered by Licensee) infringes or misappropriates, as applicable, such third party’s patent, copyright, trade secret or trademark or other intellectual property rights enforceable under applicable laws of any jurisdiction within the United States of America; or (b) any claim by a third party arising directly from a compromise, loss or disclosure of Personally Identifiable Information. If Licensee is obligated to provide indemnification pursuant to this provision, Licensor may, in its sole and absolute discretion, control the disposition of any Claim at Licensee’s sole cost and expense. Without limiting the foregoing, Licensee may not settle, compromise, or in any other manner dispose of any Claim without the consent of Licensor.
- Disclaimer of Warranties. LICENSOR PROVIDES THE WEBSITE, THE DATABASE AND THE SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE DATABASE, AND/OR THE SOFTWARE OR ITS USE (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET LICENSEE’S REQUIREMENTS, (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE LICENSEE USE, OR THAT DEFECTS IN THE WEBSITE, THE DATABASE, AND/OR THE SOFTWARE WILL BE CORRECTED. LICENSOR MAKES NO WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE WEBSITE AND/OR THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, THE DATABASE, AND/OR THE WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR LICENSOR’S AUTHORIZED REPRESENTATIVE SHALL CREATE, OR IN ANY WAY INCREASE THE SCOPE OF, A WARRANTY. SHOULD THE WEBSITE AND/OR THE SOFTWARE PROVE DEFECTIVE, LICENSEE (AND NOT LICENSOR OR LICENSOR’S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee.
- Exclusion of Damages. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL LICENSOR, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOST DATA, LOSS OF GOODWILL AND THE LIKE) ARISING OUT OF OR RELATING TO OR CONNECTED WITH THE USE OR MISUSE OF, OR INABILITY TO USE, THE WEBSITE, THE DATABASE OR THE SOFTWARE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF LICENSOR HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee.
- Limitation of Liability. IN NO EVENT WILL LICENSOR’S LIABILITY ARISING FROM OR RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE DATABASE, AND/OR THE SOFTWARE EXCEED $10.
- General Provisions.
- Independent Contractor Status. Licensor is an independent contractor and shall be free to exercise its discretion and independent judgment.
- No Representation As Agent. A Party will not represent itself as the other Party and shall not commit or obligate the other Party in any way to other parties. Each Party agrees that, during the term of this Agreement, the Party will not act in any manner that compromises the other Party or implies the other Party’s endorsement of any product or service.
- Reporting Requirements. Licensee shall be responsible for making all applications, preparing all reports and paying all amounts that may be required by appropriate federal, state and local laws (e.g., taxes, required licenses and otherwise) pertaining to, or arising out of this Agreement.
- Taxes. Each Party assumes full responsibility for its personnel, including, but not limited to, the making of all deductions required of employers by federal, state, and local laws, including social security and withholding taxes, and of contributions for employment compensation funds and the maintenance of workman's compensation and liability insurance for each of them. Notwithstanding the foregoing, each Party may make such deductions from amounts payable to the other Party hereunder if, and as, required by law or government regulation. Each Party shall provide the other Party with its federal tax identification number upon written request.
- Compliance with Agreement. Each Party warrants to the other Party that it shall take appropriate action, by instruction or agreement with its personnel, to ensure that all of its personnel performing work or services hereunder shall be bound by and comply with all of the terms and conditions hereof, including but not limited to, Section 4 hereof, pertaining to Confidentiality Obligations.
- Compliance with Law. Each Party will comply with all applicable federal, state, county and municipal statutes, ordinances, rules and regulations pertaining to, or regulating, the performance of this Agreement, or any part hereof.
- Rights Are Cumulative. Every right or remedy conferred upon, or reserved to, the Parties by this Agreement shall be cumulative and shall be in addition to every right or remedy now or hereafter existing at law or in equity, and the pursuit of any right or remedy shall not be construed as an election.
- Force Majeure. Licensor will not be liable for failing to perform under this Agreement by the occurrence of any event beyond its reasonable control, including without limitation, a labor disturbance, an Internet outage, interruption of service, communication outage, failure by a service provider to Licensor, fire, terrorism, natural disaster, or war.
- Governing Law. All disputes arising out of or relating to this Agreement (including its formation, performance, or alleged breach) or use of the Products shall be governed by the substantive law of the State of Arizona (without giving effect to any conflict of law principal arising under Arizona law). Any litigation arising out of or under this Agreement or Licensee’s use of the Products may be brought only in federal or state courts located in Maricopa County in the State of Arizona. The parties waive any and all objections to the venue in those Courts and hereby submit to the jurisdiction of those courts. Licensee hereby waive all rights and/or entitlements to a trial by a jury in connection with any dispute that arises out of or relates in any way to this Agreement, the Products.
- Assignment. Licensee may not assign or otherwise transfer this Agreement or its rights and obligations hereunder without the prior written consent of Licensor, which consent will not be unreasonably withheld. Licensor may assign or otherwise transfer this Agreement or its rights and obligations hereunder without the prior written consent of Licensee.
- Export Rules. Licensee agrees that the Software, the Website, the Database, and/or the Personally Identifiable will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable federal and state export laws, restrictions or regulations.
- Severability. If a court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or otherwise unenforceable for any reason, such provision will be deemed stricken to the extent that it is illegal, invalid or otherwise unenforceable. All remaining provisions will remain in full force and effect, and this Agreement will be interpreted as if it had not contained the severed provision.
- Waiver Of Class Action Rights. By entering into this Agreement, Licensee hereby irrevocably waives any right Licensee may have to join claims with those of others in the form of a class action or similar procedural device. Any claims arising out of, relating to, or in connection with this Agreement must be asserted individually.
- Headings. Captions and section headings used herein are for reference purposes only and will not control or alter the meaning of this Agreement as set forth in the text.
- Entire Agreement. Except as otherwise provided for herein, this Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and understandings, oral or written, between the Parties with respect to the subject matter hereof and it supersedes all prior and contemporaneous, oral and written agreements and understandings with respect to the same. Licensor may unilaterally amend or otherwise alter this Agreement, and Licensee’s continued access to the Website, the Database, and the Software shall be conditioned on acceptance of such amendments. This Agreement will be binding on and inure to the benefit of the legal representatives, successors and permitted assigns of the Parties. This Agreement may be modified only by an instrument in writing executed by duly authorized representatives of each Party. In the event of any conflict between a provision of this Agreement and a provision of any Exhibit, the provision of this Agreement will control.