McElroy Manufacturing, Inc. ("Licensor") provides these services subject to the following License Agreement.
This is a legal agreement between you ("Licensee") and Licensor. By setting up or using an account or any subaccount for the Products defined below (an account, along with any of its subaccounts, are collectively referred to herein as the "Account"), you are consenting to the terms of this license agreement ("Agreement"). In this Agreement, you, the recipient of the license rights granted by this Agreement, are referred to as "Licensee" or "You." If you are entering into this Agreement for an entity, such as the company you work for, that entity is the Licensee and You are an Authorized User. You warrant and represent to us that you have the legal authority to bind that entity to this Agreement. The Licensee who sets up an account is responsible under this Agreement for the account, any subaccounts and any Authorized Users. In addition, any person or entity who uses the Account is also bound by the terms of this Agreement.
1. LICENSE GRANT. Pursuant to the terms and conditions of this Agreement, Licensor grants Licensee a non-exclusive, non-transferable license ("License") to use the DataLogger Vault products, systems, and applications, and any other related products, systems or applications, Licensee is accessing, using, downloading, or streaming while signed in to this Account (the "Products") solely for Licensee's internal operations or business purpose. Licensee agrees not to use the Products for unlawful purposes, and Licensee represents and warrants that Licensee and its Authorized Users will comply with all applicable laws and regulations and these terms and conditions in connection with access to and use of the Products and the Account. In consideration for Licensee's agreement to the terms of this Agreement, many or all of the Products are offered free of charge. For Products that Licensor offers for a fee, Licensee agrees to pay the fees associated with the selected Products under payment terms provided by Licensor.
2. USE RESTRICTIONS. Except as explicitly provided herein, Licensee shall not: (1) make available or distribute all or part of the Products to any third party by assignment, sublicense or by any other means; or (2) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Products.
3. AUTHORIZED USERS. Licensee is responsible for designating authorized users who are permitted access to the Account or any subaccount ("Authorized Users") and limiting access of login credentials associated with the Account. Licensor is not responsible for any unauthorized access to the Account, except if such access is the result of Licensor's negligence or willful misconduct. Except as required by law, Licensor will only disclose Account information or Data (defined below) to Authorized Users. There are no third party beneficiaries to this Agreement.
4. PROPRIETARY RIGHTS. Licensee acknowledges and agrees that the copyright, patent, trade secret, and all other intellectual property rights of whatever nature in and to the Products, or any modifications thereof, are and shall remain the property of Licensor, and nothing in this Agreement should be construed as transferring any aspects of such rights to Licensee or any third party. This section 4 survives termination of this Agreement.
5. LICENSEE DATA. At all times during and after the term of this Agreement, Licensee shall be the sole owner of all Data. Licensee grants Licensor a limited use license to manipulate, organize and display the Data for use by Licensee and its authorized users. Licensee grants Licensor the right to access and use the Data or Account information in aggregated and anonymized form only as needed for maintenance, product development, trend analysis or testing by Licensor as reasonably necessary for the performance of this Agreement and/or to comply with applicable laws or regulations or legal or regulatory process and shall not use the Data or Account information for the purpose of determining, soliciting or otherwise contacting Licensee's customers or competitors.
Except for the limited rights granted to Licensor by Licensee set forth above, Licensor shall not access, use or disclose Licensee Data for any purpose whatsoever unless specifically authorized in writing (including electronic communication) by Licensee to read, access, use, monitor or analyze specific Licensee Account information and Data. In cases where Licensee grants any authorization to Licensor, Licensor is barred from disclosing specific Account information and Data to any third party, for any reason.
Licensor makes no warranty or representation with respect to the accuracy of data uploaded, imported, manually entered or otherwise provided by Licensee, an Authorized User or any other person in connection with the Account (the "Data"), or the property or equipment to which the Data relates. Licensor will maintain all data services, including collection, storage, security and disaster recovery, while implementing best practices and policies with respect to such services in conformity with all relevant industry standards to retain and redundantly secure such Data. Except in the case of any negligence or willful misconduct by Licensor or anyone acting on Licensor's behalf, Licensor bears no responsibility for the loss of such Data. While the Products may be used alongside such Data, the Products are not a substitute for maintenance and inspection of Licensee's property.
Access to the Products may be interrupted from time to time due to equipment malfunction, updates, maintenance and repairs, or other reasons beyond Licensor's control. LICENSOR SHALL HAVE NO LIABILITY FOR SUCH SERVICE OUTAGES.
Except for the limited service interruptions described in the preceding paragraph, Licensee shall at all times during the term of this Agreement have the ability to obtain i) a complete copy of all Data uploaded by Licensee in a CSV or TXT format, and ii) one complete copy of the original Data file that resides with the Account in the format maintained by Licensor and one pdf file of the data contained within each of those files. After termination of this Agreement, Licensor shall provide such information one time to Licensee, at no cost to Licensee, upon written request, provided the request is received by Licensor no later than forty-five (45) days after termination of this Agreement.
6. NO WARRANTY. LICENSOR PROVIDES THE PRODUCTS "AS IS" AND MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY RELATED TO THE DESIGN OR CONDITION OF THE PRODUCTS. LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
7. INDEMNITY. Licensee shall defend, indemnify and hold harmless Licensor (including, without limitation, Licensor's affiliates, directors, officers, and employees) from any loss, damage, claim of damage, liability or expense of any kind or to any person, entity or property (whether based on contract, tort, negligence or otherwise), including but not limited to reasonable attorneys' fees and expenses, arising directly or indirectly out of (i) the negligence or willful misconduct of Licensee, its agents, employees, clients or contractors in connection with or in any way related to their access to and use of the Account or the Data, or (ii) the failure of Licensee, its agents, employees, clients or contractors to comply with this Agreement.
Licensor shall defend, indemnify and hold harmless Licensee (including, without limitation, Licensee's affiliates, directors, officers, and employees) from any loss, damage, claim of damage, liability or expense of any kind or to any person, entity or property (whether based on contract, tort, negligence or otherwise), including but not limited to reasonable attorneys' fees and expenses, arising directly or indirectly out of (i) the negligence or willful misconduct of Licensor, its agents, employees, clients or contractors in connection with or in any way related to this Agreement, (ii) any unauthorized use or access of Licensee's Data resulting from the negligence or willful misconduct of Licensor, its agents, employees, clients or contractors, except as may be caused by Licensee's negligence, or (iii) the failure of Licensor, its agents, employees, clients or contractors to comply with this Agreement. Licensor shall provide Licensee prompt written notice in the event Licensor receives a subpoena or is otherwise required by law or legal proceeding or process to disclose Licensee's Account information or Data to a third party or otherwise appear or provide information in any way related to this Agreement (collectively, "Legal Process"), and shall only disclose Licensee's Account Information or Data pursuant to any such Legal Process upon the prior written advice of legal counsel. Licensee shall reimburse, indemnify and hold harmless Licensor from the reasonable cost and expense, including reasonable attorneys' fees and expenses, related to such advice and any required disclosure. This section 7 survives termination of this Agreement.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE OBLIGATIONS OF EACH PARTY UNDER SECTION 7 OF THIS AGREEMENT, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER LICENSOR OR LICENSEE HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF EACH PARTY TO THE OTHER FOR ANY REASON AND UPON ANY CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS WITH RESPECT TO THIS AGREEMENT, SHALL BE LIMITED TO ACTUAL DAMAGES.
9. TERM AND TERMINATION. The License granted herein shall remain in effect perpetually unless terminated as provided in this Agreement. In the event of any material breach by Licensee or its Authorized User of this Agreement that is not cured by Licensee within 5 (five) business days of notice by Licensor, Licensor may suspend access to the Account or terminate this Agreement immediately with notice to the e-mail address associated with the Account.
Either party may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. Upon termination of this Agreement, Licensee shall cease using the Products and promptly return and/or warrant that all copies of any Products residing in, on or off-line computer storage have been permanently deleted. Following the termination of this Agreement, Licensor shall represent, warrant and certify to Licensee that Licensor has returned all Data to Licensee and has destroyed all such copies of the same, including but not limited to, the raw Data and any reports, summaries, or other forms of the Data in Licensor's possession or control. Except as otherwise set forth herein, Licensee will no longer have access to the Account, the Data or the Products upon termination of this Agreement.
10. EXPORT. The Products may be subject to export laws and regulations of the United States or other jurisdictions. Licensee represents that it is not named on any U.S. Government denied persons or denied entity list. Licensee agrees not to permit access to the Products by any person or entity that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations, including but not limited to the U.S. export regulations.
11. MISCELLANEOUS. Any notices given by Licensor in connection with this Agreement will be sent to Licensee at the e-mail address provided in connection with the Account and shall be deemed to have been given the day the email is sent. Any notice given by Licensee to Licensor shall be sent by certified mail to: McElroy Manufacturing, Inc., Attn: Corporate Notices, 833 North Fulton, Tulsa, Oklahoma 74115-6408. Such notice shall be deemed given the day the certified mail is delivered to and signed by Licensor. Unless Licensee is an employee of Licensor, the parties are independent contractors and neither party is an agent, representative, or partner of the other. Licensor may modify the Products at any time without notice to Licensee. The terms of this Agreement may be modified at any time by Licensor and shall become effective as against Licensee upon Licensor i) providing prior written notice to Licensee or ii) posting a link to the new terms on the Account login site. Modifications to this Agreement shall apply to the Account, including any subaccounts and Authorized Users. Licensee may not assign this Agreement without the prior written consent of Licensor, which consent shall not be unreasonably withheld. This License will be interpreted and enforced under Oklahoma law without regard to its conflict of law principles. All parties consent to the exclusive jurisdiction and venue of the State District Court of the County of Tulsa, Oklahoma, or the U.S. District Court for the Northern District of Oklahoma for the resolution of any disputes relating to this Agreement. If any provision of the License is found to be unenforceable, the remaining provisions of the License will continue in full force and effect as if the unenforceable portion did not exist.
LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR, AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE PRODUCTS AND THE SUBJECT MATTER OF THIS AGREEMENT.
Revised Edition (03.02.16)