END USER LICENSE AGREEMENT
PLEASE READ CAREFULLY BEFORE USING THIS SOFTWARE
This End User License Agreement (“Agreement”) is a legal agreement between you and Tinnacity, LLC, an Ohio limited liability company (“Tinnacity”), and is effective as of the date you accept these terms.
Tinnacity owns certain field service solutions and mobile and cloud service solutions (collectively, the “Software”), and Tinnacity, pursuant to the terms below, agrees to license the use of the Software to you.
The parties therefore agree as follows.
1. Acceptance. By clicking "I Agree," indicating acceptance electronically, or by downloading, installing, accessing, or using the Software, you agree to these terms. If you do not agree to this Agreement, then your sole remedy is to cease using the Software.
2. License Grant and Limitations.
(a) License. You agree that the Software is licensed, not sold. All intellectual property rights in the Software are owned by Tinnacity and are protected by law, including but not limited to United States copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. You are only granted certain limited rights to install and use the Software, and Tinnacity reserves all other rights in the Software not granted to you in writing herein. As long as you meet any applicable payment obligations and comply with this Agreement and any other agreements that apply to your use of the Software, Tinnacity grants you a limited, nonexclusive, nontransferable, revocable license to use the Software only for the period agreed upon, as set forth in writing and in your agreements with Tinnacity, and only for the purposes described by Tinnacity for the Software.
(b) Limitations. You shall not, and shall not permit any other Person to, access or use the Software except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
(1) copy, modify, or create derivative works or improvements of the Software;
(2) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the 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;
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(3) reverse-engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
(4) bypass or breach any security device or protection used by the Software or access or use the Software other than by the use of your authorized means;
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(5) input, upload, transmit, or otherwise provide to or through the Software, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
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(6) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Software or Tinnacity Systems;
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(7) remove, delete, alter, or obscure any documentation, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights from the Software;
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(8) access or use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable Law;
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(9) access or use the Software for purposes of competitive analysis of the Software or for the development, provision, or use of a competing software service or product or any other purpose that is to Tinnacity’s detriment or commercial disadvantage; or
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(10) otherwise access or use the Software beyond the scope of the authorization granted under this section 2.
3. Availability.
(a) Generally. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, Tinnacity shall use commercially reasonable efforts to provide you access to the Software, except for:
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(1) Scheduled Downtime in accordance with section 3(b);
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(2) Service downtime or degradation due to a Force Majeure Event;
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(3) any other circumstances beyond Tinnacity’s reasonable control, including your misuse of the Software or use of the Software other than in compliance with the express terms of this Agreement; and
(4) any suspension or termination of your access to or use of the Software as permitted by this Agreement.
(b) Scheduled Downtime. Tinnacity will use commercially reasonable efforts to schedule downtime for routine maintenance of the Software (“Scheduled Downtime”).
(c) Suspension or Termination of Service. Tinnacity may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate, or otherwise deny your or any other Person’s access to or use of all or any part of the Software, without incurring any resulting obligation or liability, if: (i) Tinnacity receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Tinnacity to do so; or (ii) Tinnacity believes, in its good faith and reasonable discretion, that: (x) you have failed to comply with any material term of this Agreement or accessed or used the Software beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (y) you are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the use of the Software; or (z) this Agreement expires or is terminated. This subsection does not limit any of Tinnacity’s other rights or remedies, whether at law, in equity or under this Agreement.
4. Your Obligations.
(a) Your Systems and Cooperation. You shall at all times during the term of this Agreement: (i) set up, maintain, and operate in good repair all necessary Customer Systems on or through which the Software is accessed or used; (ii) provide Tinnacity personnel with such access to Customer Systems as may be necessary, from time to time, for Tinnacity to offer the Software; and (iii) provide all cooperation and assistance as Tinnacity may reasonably request to enable Tinnacity to exercise its rights and perform its obligations under and in connection with this Agreement.
(b) Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by section 2, you shall immediately: (i) take all reasonable and lawful measures within your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Software); and (ii) notify Tinnacity of any such actual or threatened activity.
(c) Your Responsibly for Your Inputs. You acknowledge and agree that: (i) the Software may allow you to input certain values and pricing, including but not limited to labor rates, fleet pricing, dealer pricing, part pricing, tax rates, and miscellaneous items (collectively, “Customer Inputs”); (ii) you are responsible for the accuracy of all Customer Inputs and calculations resulting from or related to all Customer Inputs; and (iii) Tinnacity shall not be liable for any errors or inaccuracies related to the Customer Inputs.
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5. Security and Data.
(a) Your Responsibility. You have and will retain sole responsibility for: (i) all your data; (ii) all information, instructions, and materials provided by or on behalf of you in connection with the use of the Software; and (iii) your Customer Systems. You expressly agree that: (x) the Software is programmed to perform routine data backups from time to time; however, the use of the Software does not replace the need for you to maintain regular data backups or redundant data archives; and (y) TINNACITY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.
(b) Access. You shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to: (i) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Software; and (ii) control the content and use of your data, including the uploading or other provision of your data for processing by the Software.
6. DISCLAIMERS.
(a) AS IS. YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TINNACITY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. TINNACITY DOES NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION.
(b) COMPLIANCE. TINNACITY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
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(c) Third Party Issues. Tinnacity is not responsible or liable for any late delivery or delay or failure of performance of the Software caused in whole or in part by (i) you failing to act or delaying acting according to instructions from Tinnacity regarding the Software; (ii) failure of you to timely implement any modifications, upgrades, replacements, enhancements, or corrections made available to you by Tinnacity related to the Software; and (iii) you using any third party software, hardware, or system (or any upgrades or updates to any of the foregoing) in conjunction with the Services where such combination is not authorized in writing by Tinnacity.
7. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF TINNACITY FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE USE OF THE SOFTWARE DURING THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, TINNACITY IS NOT LIABLE FOR ANY OF THE FOLLOWING: (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (ii) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET TINNACITY SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF TINNACITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND ITS USE.
Further, you agree to indemnify and hold Tinnacity harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Software or breach of this Agreement (collectively referred to as "Claims"). Tinnacity reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Tinnacity in the defense of any Claims.
8. Changes. Tinnacity reserves the right to change this Agreement at any time, and the changes will be effective when posted on Tinnacity’s website or when Tinnacity notifies you by other means. Tinnacity may also change or discontinue the Software, in whole or in part. Your continued use of the Software indicates your agreement to the changes.
9. Trial Version. If you are using the Software on a trial basis, Tinnacity: (i) may offer certain features and functionality on a limited or restricted basis; and (iii) may terminate your trial at any time. If your trial is terminated or expires, you understand and agree that your data and content, if any, may no longer be available to you. For clarity, if you decide not to purchase a full version of the Software, you may not be able to access or retrieve any of your data or content that you added or created during the trial period.
10. Termination. Tinnacity may immediately, in its sole discretion, and without notice terminate your use of the Software if you fail to comply with this Agreement. Upon termination you must immediately stop using the Software and any outstanding payments will become due. Any termination of this Agreement will not affect Tinnacity’s rights to any payments due to it.
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11. Export Restrictions. You acknowledge and agree that the Software, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export the Software in violation of these laws and regulations, directly or indirectly.
12. Customer Representations. You represent and state to Tinnacity that you own or otherwise have or will have the necessary rights and consents in and relating to your data and content so that you do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable Law.
13. Force Majeure. In no event will either party be liable or responsible to the other party, 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 (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’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 embargo, 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 thirty (30) days or more.
14. Miscellaneous.
(a) Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
(b) 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. In the event of any inconsistency between this Agreement and any other document(s), the terms of this Agreement shall control.
(c) 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, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Tinnacity’s prior written consent. No delegation or other transfer will relieve you of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Agreement is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(d) No Third-party Beneficiaries. 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 upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(e) 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. Upon 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.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio 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 Ohio. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Columbus and County of Franklin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of any of your obligations would cause Tinnacity irreparable harm for which monetary damages would not be an adequate remedy and you agree that, in the event of such breach or threatened breach, Tinnacity will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, 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.
15. Definitions. As used in this Agreement, the following defined terms have the following meanings:
“Agreement” means this End User License Agreement.
“Customer Systems” means your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services.
“Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Tinnacity or its designee to disable your access to or use of the Software automatically with the passage of time or under the positive control of Tinnacity.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby. Harmful Code does not include any Tinnacity Disabling Device.
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“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Software” means certain field service solutions and mobile and cloud service solutions owned by Tinnacity.
“Tinnacity” means Tinnacity, LLC, an Ohio limited liability company.
“Tinnacity Systems” means the information technology infrastructure used by or on behalf of Tinnacity in offering the Software, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Tinnacity or through the use of third-party services.