END-USER LICENSE AGREEMENT
FOR THE ELEVATOR CONSULTANTS MAINTENANCE ON DEMAND WEB APPLICATION
This is a legal agreement between Axium LLB, d/b/a The Elevator Consultants (“TEC”) and each user that is registered with and establishes a User Account associated with the Licensed Application (defined below) and that accepts this EULA (each an “Authorized User”). Maintenance on Demand website application software which includes, without limitation, computer software and may include associated media, printed materials, and “online” or electronic documentation (collectively, the “Licensed Application”). TEC provides to Authorized Users the right to access and use the Licensed Application pursuant to the terms of this EULA.
BY ACCESSING, DOWNLOADING, INSTALLING, IMPLEMENTING, OR USING THE LICENSED APPLICATION, AUTHORIZED USER AGREES TO BE BOUND BY THE TERMS OF THIS EULA, AS THE SAME MAY BE AMENDED BY TEC IN ITS DISCRETION FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT ACCESS, DOWNLOAD, INSTALL, IMPLEMENT, COPY OR USE THE LICENSED APPLICATION.
A. The Licensed Application is the Maintenance on Demand web application. The Licensed Application contains some or all of the following types of software: (i) the Maintenance on Demand mobile application downloadable from Apple Store and Google Play store, and (ii) server(s) and software to provide the Maintenance on Demand website application, data storage and service requests and responses. The Licensed Application receives data concerning the operation, usage, uptime, location, service records and maintenance, and/or performance (“Maintenance Data”) concerning elevators and other equipment serviced or monitored by Authorized Users in connection with the use of the Licensed Application (“Serviced Equipment”).
B. TEC owns the Licensed Application.
C. TEC provides to Authorized Users the right to access and use the Licensed Application pursuant to this EULA. The right to access and use the Licensed Application is subject to acceptance of this EULA by an Authorized User and the terms and conditions set forth herein.
D. The Licensed Application and Related Services are protected by applicable federal, state, local and foreign laws, rules, regulations and treaties, including, without limitation, United States and foreign copyright laws and international copyright treaties.
E. Authorized Users may include property owners, property managers, and elevator service providers. Authorized User represents and warrants that he or she is 18 years old or older, or a legal entity, and recognizes that use of the License Application is limited to persons 18 years old or older and legal entities.
NOW, THEREFORE, in exchange for the mutual promises set forth in this EULA, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. General Terms
a. Grant of License. Provided that an Authorized User accepts this EULA and complies with all terms and conditions of this EULA, under this EULA TEC hereby grants each Authorized User a limited, non-exclusive, non-transferable, non-assignable, revocable license for Authorized User’s personal use and/or purposes within Authorized User’s organization to access, download, install and use the Licensed Application.
b. True License. The parties acknowledge their mutual intention that the license granted under this EULA be construed to be a true license and not a sale of the Licensed Application or any component or element thereof, or any patent, copyright, trademark, trade secret or other proprietary rights therein or thereto. Additionally, this license does not establish TEC as a provider of maintenance or consulting services to Authorized User.
c. Licensed Application Revisions. TEC may revise the features and functions of the Licensed Application without notice at any time.
2. Term and Termination
a. Term. This EULA shall become effective as of the acceptance of this EULA by Authorized User and shall remain in effect until terminated as permitted under this EULA.
b. Termination. Either party may terminate this EULA for any reason at any time. Authorized User may terminate this EULA by closing Authorized User’s account. TEC may terminate by notifying Authorized User in writing including, without limitation, via text, email, or other electronic means, and closing Authorized Users account. TEC may also close Authorized User’s account without notice for non-payment of licensing fees or account inactivity.
c. Effect of Termination or Expiration. In the event of the termination or expiration of this EULA, the licenses granted hereunder shall terminate and Authorized User shall immediately cease accessing and using the Licensed Application. Termination or expiration of this EULA shall be without prejudice to any other right or remedy to which TEC may be entitled under this EULA or applicable law. Termination or expiration of this EULA shall not relieve Authorized User from its obligations arising hereunder before termination or expiration of this EULA or which survive termination or expiration of this EULA.
4. Permissions from Authorized User:
b. Authorized User grants TEC permission to access, process and otherwise use Maintenance Data in order to provide TEC’s products and/or services to Authorized User, and to track and analyze Authorized User’s use of the Licensed Application and Serviced Equipment.
c. Authorized User grants TEC permission to aggregate Maintenance Data relating to Authorized User’s Serviced Equipment, after removing any personally identifiable information, with de-identified Maintenance Data from other Authorized Users (“Aggregate Maintenance Data”) in order for TEC to track and analyze, for example, usage, maintenance, uptime, fault trends of Serviced Equipment. Authorized User agrees that Authorized User has no rights of ownership or access to Aggregate Maintenance Data.
d. Authorized User consents to receive email and/or text messages from TEC in connection with Authorized User’s use of the Licensed Application. Standard text messaging charges required by Authorized User’s mobile carrier will apply to text messages we send Authorized User.
5. Description of Other Rights, Obligations and Limitations
a. Restrictions on Use. Authorized User shall not:
(i) market, sell, distribute, sublicense, use, modify, translate, reproduce, create derivative works from, dispose of, rent, lease, or authorize or permit access or use of any portion of the Licensed Application except as expressly permitted in this EULA;
(ii) access or use, or permit the Licensed Application to be accessed or used, in a computer service bureau, time-sharing, or interactive cable television arrangement or in a network arrangement;
(iii) reverse engineer, decompile, or disassemble the Licensed Application, except and only to the extent that such activity is expressly permitted by applicable law;
(iv) export or use the Licensed Application in violation of U.S. law, including Department of Commerce export administration regulations;
(v) access and use the Licensed Application in any manner that is inconsistent with the terms of this EULA; or
(vi) upload or store personally identifiable information of natural persons other than Authorized User’s access credentials and business contact information.
b. Additional Obligations.
(i) Authorized User shall comply in full with all federal, state, local and foreign laws, rules and regulations in connection with its access to, and use of, the Licensed Application or the use thereof by any employee or agent of Authorized User.
(ii) The Licensed Application may be accessed and used only in a form and manner approved by TEC in its sole discretion, and only in accordance with the terms and conditions of this EULA.
(iii) Authorized User shall take reasonable steps to prevent unauthorized access to the Licensed Application, including by protecting Authorized User’s passwords and other log-in information. Authorized User shall notify TEC immediately if Authorized User knows of or suspects unauthorized use of the Licensed Application or breach of its security.
(iv) Authorized User understands and agrees that TEC may delete non-current Maintenance Data periodically and without prior notice to Authorized User, and that Authorized User is fully responsible for backing up Maintenance Data and creating any archival copies it needs.
6. Feedback. TEC has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Authorized User may provide to TEC, and nothing in this EULA or in the parties’ dealings arising out of or related to this Eula will restrict TEC’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You. Authorized User hereby grants TEC a perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of TEC’s products or services.)
7. ACCESS TO AND USE OF THE LICENSED APPLICATION IS PROVIDED “AS IS”, “WITH ALL FAULTS”. TEC DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OR USE OF LICENSED APPLICATION AND/OR RELATED SERVICES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, IF AN AUTHORIZED USER IS DISSATISFIED WITH THE LICENSED APPLICATION, OR ANY PORTION THEREOF, SUCH AUTHORIZED USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE LICENSED APPLICATION. THE PARTIES AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE LICENSED APPLICATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE LICENSED APPLICATION. Please note that some jurisdictions may not allow the above exclusion of implied warranties, so some of the above exclusions may not apply to Authorized User.
8. LIABILITY CAP AND LIMITATION OF LIABILITY
a. LIABILITY CAP. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, IN NO EVENT SHALL TEC’S TOTAL LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS EULA OR USE OF THE LICENSED APPLICATION (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED: (I) THE GREATER OF THE TOTAL FEES ACTUALLY PAID TO TEC BY AUTHORIZED USER UNDER THIS EULA; OR (II) U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
b. LIMITATION OF LIABILITY FOR USE OF LICENSED APPLICATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, NEITHER TEC NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE, UNDER ANY CIRCUMSTANCES, LIABLE TO AUTHORIZED USER OR ANY OTHER PERSON, FIRM OR ENTITY (WHETHER IN AN ACTION ARISING FROM CONTRACT, TORT OR OTHER LEGAL THEORY) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES RESULTING FROM THE ACCESS OR USE OF THE LICENSED APPLICATION OR RELATED SERVICES, OR OTHERWISE, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES ARISING FROM (I) INFORMATION OR DATA OBTAINED FROM OR THROUGH LICENSED APPLICATION, (II) RELIANCE BY ANY PERSON ON INFORMATION OR DATA OBTAINED FROM OR THROUGH LICENSED APPLICATION, (III) VIRUS TRANSMISSION OR DELETION OR LOSS OF FILES OR E-MAIL, (IV) LOSS OF DATA OR INFORMATION OF ANY KIND, (V) LOSS OF PROFIT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (VI) LIABILITY FOR PERSONAL INJURY, OR (VII) LIABILITY TO THIRD PARTIES.
C. NO LIABILITY FOR SERVCIES OBTAINED THROUGH USE OF THE LICENSED APPLICATION. TEC SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF ANY TRANSACTION OR RELATIONSHIP BETWEEN AUTHORIZED USER AND ANY THIRD-PARTY SERVICE PROVIDER, WHETHER A SEPARATE AUTHORIZED USER OR NOT, EVEN IF TEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT AUTHORIZED USER’S ABILITY TO OBTAIN MAINTENANCE AND OTHER SERVICES THROUGH USE OF THE LICENSED APPLICATION DOES NOT ESTABLISH TEC AS AUTHORIZED USER’S SERVICE PROVIDER. AUTHORIZED USER ACKNOWLEDGES THAT THIRD PARTY PROVIDERS PROVIDING MAINTENANCE SERVICES REQUESTED THROUGH THE LICENSED APPLICATION ARE NOT VETTED BY TEC AND TEC MAKES NO REPRESENTATIONS OR WARRANY CONCERNING THIRD PARTY SERVICE PROVIDERS OR THEIR ABILITY TO PROVIDE REQUESTED SERVICES IN A WORKMANLIKE MANNER. THE LICENSED APPLICATION MAY BE USED BY AUTHORIZED USER TO REQUEST AND SCHEDULE MAINTENANCE AND OTHER SERVICES WITH THIRD PARTY SERVICE PROVIDERS, BUT AUTHORIZED USER AGREES THAT TEC HAS NO RESPONSIBILITY OR LIABILITY TO AUTHORIZED USER RELATED TO ANY MAINTENANCE OR OTHER SERVICES PROVIDED TO AUTHORIZED USER BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. IN PARTICULAR, AND WITHOUT LIMITATION, TEC SHALL NOT BE LIABILE FOR ANY FAILURE TO PERFORM REQUESTED MAINTENANCE OR SERVICES, OR FAULTY PERFORMANCE OF REQUESTED MAINTENANCE AND SERVICES.
d. NO LIABILITY FOR PAYMENT TO SERVICE PROVIDERS. TEC SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF ANY TRANSACTION OR RELATIONSHIP BETWEEN AUTHORIZED USER AND ANY THIRD PARTY, WHETHER A SEPARATE AUTHORIZED USER OR NOT, WHICH ENGAGES THE AUTHORIZED USER TO PROVIDER MAINTENANCE OR OTHER SERVICES AS A RESULT OF USE OF THE LICENSED APPLICATION, EVEN IF TEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AUTHORIZED USER ACKNOWLEDGES THAT THIRD PARTY REQUESTORS OF SERVICES CONTACTED THROUGH THE LICENSED APPLICATION ARE NOT VETTED BY TEC AND TEC MAKES NO REPRESENTATIONS OR WARRANY CONCERNING THIRD PARTY REQUESTORS OF SERVICES OR THEIR ABILITY TO PAY FOR REQUESTED SERVICES. THE LICENSED APPLICATION MAY BE USED BY AUTHORIZED USER TO RESPOND TO SERVICE REQUESTS AND SCHEDULE MAINTENANCE AND OTHER SERVICES WITH THIRD PARTY SERVICE REQUESTORS, BUT AUTHORIZED USER AGREES THAT TEC HAS NO RESPONSIBILITY OR LIABILITY TO AUTHORIZED USER RELATED TO ANY MAINTENANCE OR OTHER SERVICES PROVIDED BY AUTHORIZED USER FOR THIRD PARTY SERVICE REQUESTORS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. IN PARTICULAR, AND WITHOUT LIMITATION, TEC SHALL NOT BE LIABLE FOR PAYMENT OR NON-PAYMENT FOR MAITNENACE OR OTHER SERVICES PERFORMED FOR THIIRD PARTY REQUESTORS.
e. NO LIABILITY FOR PAYMENT PROCESSORS. TEC SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF ANY TRANSACTION OR RELATIONSHIP BETWEEN AUTHORIZED USER AND THE PAYMENT PROCESSOR THAT PROCESSES PAYMENTS ON TEC’S BEHALF FOR USE OF THE LICENSED APPLICATION. AUTHORIZED USER’S SOLE REMEDY FOR DISPUTES ABOUT PAYMENTS SHALL BE WITH THE PAYMENT PROCESSOR.
9. Exclusive Remedy. In the event of a breach of this EULA by TEC, TEC’s and its service providers’ entire liability and an Authorized User’s sole and exclusive remedy shall be, at TEC’s option: (a) return of the fees paid (if any) by an Authorized User for access to and use of the Licensed Application under this EULA, or (b) repair or replacement of, the Licensed Application and/or Application Database; provided, however, that an Authorized User shall not be entitled to the foregoing remedy if any error or problem with Licensed Application arises from or results from violation of this EULA, accident, abuse, misapplication, abnormal or unauthorized access or use, or the introduction of a virus or other malicious code, by Authorized User or any employee or agent of Authorized User.
10. Intellectual Property Ownership, Copyright Protection. The Licensed Application, and any authorized copies that an Authorized User makes thereof, are the intellectual property of and are owned by TEC and its suppliers. The structure, organization and code of the Licensed Application are the exclusive property, valuable trade secrets and confidential information of TEC and/or its suppliers and title to the Licensed Application shall at all times remain with TEC and/or its suppliers. Except as expressly stated herein, this EULA does not grant Authorized User any intellectual property rights in the Licensed Application, or any component or element thereof, and all rights not expressly granted to Authorized User under this EULA are reserved to and retained by TEC and/or its suppliers. Notwithstanding anything contained in this EULA to the contrary, TEC reserves the right to release the Licensed Application under different license terms or to stop distributing or making available the Licensed Application at any time.
11. Indemnity. Authorized User shall indemnify, defend and hold harmless TEC and its affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, arising in connection with or related to: (i) the material breach of this EULA by Authorized User or any employee or agent of Authorized User; (ii) the acts and omissions of Authorized User and its employees and agents in connection with Authorized User’s use of the Licensed Application; (iii) the violation, infringement or misappropriation by Authorized User or any employee or agent of Authorized User, of the intellectual property rights of TEC or any of its suppliers; (vi) damages arising from the performance, non-performance, or faulty performance of services by Authorized User; and (vii) non-payment of moneys asserted to be owed from one Authorized User to another. The TEC may, at its own cost and expense, participate, through its attorneys or otherwise, in the investigation, trial and defense of such claim and any appeal. In such case, the Authorized User will reasonably cooperate with TEC’s attorneys.
12. Applicable Law. This EULA is governed, construed and enforced in accordance with the laws of the State of Illinois, without giving effect to any principles of conflicts of laws. Jurisdiction and venue for all actions arising under this EULA shall be in the federal and state courts located in Illinois. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this EULA.
13. Entire Agreement. This EULA (including any addendum or amendment to this EULA which is included with the Licensed Application) is the entire agreement between an Authorized User and TEC relating to the subject matter of this EULA and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter of this EULA. To the extent the terms of any TEC policies or programs for Support Services conflict with the terms of this EULA, the terms of this EULA shall control.
14. Notices and Questions. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth in this EULA (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt. Should an Authorized User have any questions concerning this EULA, or if Authorized User desires to contact TEC for any reason, please contact the TEC office serving Authorized User’s country, or write TEC at: 636 N Racine Ave, Chicago, IL 60642.
15. Dispute Resolution. Any legal disputes or claims arising out of or related to this EULA (including without limitation claims related to the use of the System, the interpretation, enforceability, revocability, or validity of the EULA, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted mediation by a mutually accepted mediator to be chosen by the parties within forty-five (45) days after written notice by either party to the other demanding mediation. No party may unreasonably withhold consent to the selection of a mediator. The parties will share the cost of the mediation equally. By mutual agreement, the parties may postpone mediation until some specified but limited discovery about the dispute has been completed. The parties may also agree to replace mediation with some other form of alternative dispute resolution. Any dispute which cannot be resolved by the parties through negotiation, mediation or other form of agreed alternative dispute resolution within one hundred twenty (120) days following the date of the initial demand for it by one of the parties may then be submitted to the courts for resolution. The use of any alternative dispute resolution procedure will not be construed under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party. All of the above alternative dispute resolution procedures shall be confidential. Claims must be brought within the statute of limitations or other time required by applicable law. Authorized User agrees to bring any claim, action or proceeding arising out of or related to the EULA in Authorized User’s individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The mediator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding without TEC’s consent. AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT AUTHORIZED USER IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
16. Force Majeure. TEC shall not be responsible for delays or failure of performance resulting from acts beyond the reasonable control of TEC. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers or service providers to perform, governmental regulations, power failures, Internet or telecommunications failures, earthquakes, or other disasters.
17. Compliance with License and Laws. Authorized User shall comply with all federal, state, local and foreign laws, regulations, rules and ordinances pertaining to the operations and conduct of its business and the license granted to Authorized User under this EULA. In the event that any part of this EULA is determined to violate any applicable federal, state, local or foreign laws, rules or regulations, then the remaining provisions of this license shall remain in full force and effect and shall be enforced to fullest extent permitted by law.
18. Payments. The Licensed Application does not accept or process payment information. Payments for use of the Licensed Application are handled by a third-party Payment Processor. If you have any questions concerning privacy or security involving payments, please contact our Payment Processor for their privacy and data security policies.
19. Headings. The titles and headings of the various sections and paragraphs in this EULA are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this EULA.
20. Forms. No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this EULA.
21. Waiver/Assignment. A waiver of any provision of this EULA shall only be effective if in a writing signed by the party against which the waiver is claimed. This EULA may not be assigned by Authorized User without the prior written consent of TEC. This EULA may be assigned by TEC, by operation of law or otherwise, without the consent or approval of Authorized User or any other person, firm or entity.
22. Survival. Sections 1b, 2b, 2c, 3, 4c, and 5-22 shall survive the termination or expiration of the EULA for any reason.
IN WITNESS WHEREOF, the parties hereto have caused this EULA to be executed by themselves or their authorized agents as of the date of acceptance by the Authorized User.
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU INDICATE YOUR ACCEPTANCE OF THIS EULA.