GroundControl™ Terms and Conditions
- BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND GROUNDCONTROL SOLUTIONS, INC. OR ANY APPLICABLE AFFILIATE (“GROUNDCONTROL”).
- IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE. IF YOU WISH TO INSTALL OR USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.
This End User License Agreement (“Agreement”) is between GroundControl and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user (“you”). This Agreement covers all Software, Support and Maintenance Services, and Professional Services.
- Affiliate: means each legal entity that is directly or indirectly controlled by you or GroundControl, as the case may be, on or after the Effective Date and for so long as such entity remains directly or indirectly controlled by you or GroundControl, as the case may be (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability organization, or the ownership of any general partnership interest in any general or limited partnership).
- Contractor: means those independent third parties who perform services related to this Agreement for you.
- Customer Content: means any and all data, applications, files, information or materials accessed, transmitted, uploaded, published or displayed through the Software by you.
- Device: means your mobile device(s), including but not limited to mobile phone(s),smartphone(s), tablet computer and computing device(s), personal digital assistant(s) and any similar or similarly functioning electronic devices, which may be monitored and managed by the Software.
- Documentation: means any supporting product help and technical specifications documentation provided by GroundControl with the Software to you.
- Ordering Document: means any order on a GroundControl order form which references this Agreement. Each Ordering Document which references this Agreement shall be deemed a part of this Agreement.
- Software: means the proprietary GroundControl software product(s) provided in connection with this Agreement in object code form or hosted by GroundControl (or as otherwise specified in any related Ordering Document). “Software” shall also include any Support and Maintenance Services releases provided to you under this Agreement. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”.
- Usage Data: means aggregated technical data about your use of the Software and your Devices, including but not limited to: account identification number; Device make and model; Device operating systems; operating system versions; the total number Devices running; the number of active Devices; dates and times of GroundControl logins; Device ownership type; application names, identifiers, versions, whether the application is public or managed; database actions taken; external calls, HTTP requests and browser load pages made by the Software; errors made by the applications running in the Software; and the amount of memory and CPU usage across the Software.
- User: means those uniquely identified individuals for which the applicable license fees have been paid, as stated on the Ordering Document, who are authorized by you to install and/or use the functionality in the Software regardless of whether those individuals are actively using the programs at any given time.
GroundControl Software Products
- GroundControl Software. In order to use the Software under this Agreement, you or GroundControl must activate and/or register your copy of the Software (“Product Key”) at the time of purchase, in accordance with the scope of use and other terms specified for each type of Software, the Documentation, and as set forth in this Section 2 of this Agreement.
- User-Based License: If your Software license is designated as User-Based, the total count of Users enabled to use such Software must not exceed the number of licenses purchased on the applicable Ordering Document(s).
- Device-Based License. If your Software license is designated as Device-Based, the total count of Devices enabled to use such Software must not exceed the number of licenses purchased on the applicable Ordering Document(s).
- Evaluation Version: If you ordered a license to an Evaluation Version, you may use the Evaluation Version Software solely for the purpose of evaluating the Software to determine whether to purchase a non-Evaluation Version of the Software. You may not use the Evaluation Version for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. For clarification, licenses provided under GroundControl’s student access program constitute Evaluation Versions. You may only use the Evaluation Version for thirty (30) days from the date you activate and/or register via the Product Key or otherwise, unless otherwise specified by GroundControl in the Documentation or a separate writing from GroundControl (“Evaluation Period”). Unless you pay the applicable license fee for the Software (and GroundControl issues a Product Key), the Evaluation Version Software may become inoperable and, in any event, your right to use the Evaluation Version Software automatically expires at the end of the Evaluation Period. Notwithstanding any other provision of this Agreement, the Evaluation Version Software is provided “AS IS” without warranty of any kind, express or implied. GroundControl may terminate your license to the Evaluation Version Software upon written notice at any time for any reason and without liability of any kind.
IF YOU SUBSEQUENTLY LICENSE A NON-EVALUATION VERSION OF THE SOFTWARE, YOUR LICENSE TO THE EVALUATION VERSION SOFTWARE SHALL IMMEDIATELY TERMINATE AND YOU EXPRESSLY AGREE THAT, UNLESS YOU HAVE A SEPARATE SIGNED LICENSE AGREEMENT GOVERNING YOUR USE OF THE SOFTWARE, THIS AGREEMENT, AND THE TERMS AND CONDITIONS HEREIN, SHALL GOVERN YOUR USE OF SUCH NON-EVALUATION VERSION.
- Grant of License. Subject to all of the terms and conditions of this Agreement, and except as set forth in Section 6 (Term of Agreement), GroundControl grants you a limited, worldwide, non-transferable, non-sublicensable, non-exclusive license to use the Software for which you have been issued a Product Key by GroundControl, but only in accordance with: (i) the Documentation; (ii) the restrictions in Section 2 (GroundControl Software Products) and any restrictions on the applicable Ordering Document; and (iii) if applicable, only for the number of Users and/or Devices specified in the Ordering Document. You may allow your Contractors and Affiliates to use the Software in accordance with this Agreement, provided you shall remain liable for the acts and omissions of your Affiliates and Contractors.
- Sample Code. Subject to the terms and conditions of this Agreement, GroundControl grants you a limited, worldwide, non-transferable, non-sublicensable, non-exclusive license to modify any sample source code from the Software provided by GroundControl to you (“Sample Code”) solely for internal use for the purposes of designing, developing, testing and otherwise facilitating your use of the Software under this Agreement.
- Archive/Disaster Recovery Copies. To the extent that Software is directly delivered to you, you are entitled to make a reasonable number of copies of the Software for archival and disaster recovery purposes.
- Third-Party Code. The Software may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon your written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
- Electronic Delivery. All Software and Documentation shall be delivered or hosted by electronic means unless otherwise specified on the applicable Ordering Document. Software shall be deemed delivered when it is made available for download or access by you (“Delivery”).
- License Restrictions. You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or Third Party Code or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software or Third Party Code by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use the Software, Third Party Code or Sample Code (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Software, Third Party Code or Sample Code; (d) except as permitted in Section 3.2 (Sample Code), modify any part of the Software, Third Party Code or Sample Code, create a derivative work of any part of the Software, Third Party Code, or Sample Code, or incorporate the Software, Third Party Code or Sample Code into or with other software, except to the extent expressly authorized in writing by GroundControl or as permitted by an applicable Open Source Software license; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Product Key or copy protection used by GroundControl in connection with the Software, or use the Software together with any authorization code, Product Key, serial number, or other copy protection device not supplied by GroundControl; (g) use the Software to develop a product which is competitive with any GroundControl product offerings; (h) use unauthorized Product Keys or keycode(s) or distribute or publish keycode(s) except as may be expressly permitted by GroundControl in writing; (i) as applicable to User-based licenses, enable access to the Software for a greater number of Users than the sum quantity of licenses purchased on the applicable Ordering Document(s); or (j) as applicable to Device-based licenses, enable access to the Software for a greater number of Devices than the sum quantity of licenses purchased on the applicable Ordering Document(s).
- Updates. GroundControl may apply bug fixes, updates, upgrades and otherwise perform maintenance on the Software at such times as determined by GroundControl in its discretion. You may not delay GroundControl’s implementation of updates, upgrades, maintenance releases or bug fixes to the Software.
- GroundControl Ownership. Subject to your ownership of Customer Content, except for the limited license rights expressly provided herein, GroundControl and its licensors have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software, Sample Code, Third Party Code, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software, Sample Code, Third Party Code and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
- Usage Data. Notwithstanding anything to the contrary (including Section 4.1 (GroundControl Ownership) and Section 11 (Confidentiality)), GroundControl will own all Usage Data and may make use of such Usage Data without any confidentiality obligations.
- Fees. You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable Ordering Document. Unless stated otherwise in the Ordering Document, full payment is due upon Delivery of the Software to you. Except as expressly set forth herein, all fees are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, GroundControl will invoice you for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. You will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by you hereunder will be your sole responsibility.
Term of Agreement
- Term. This Agreement is effective as of the Delivery of the Software and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). For clarification, the term of your license under this Agreement may be perpetual, limited for Evaluation Version, or designated as a fixed-term license in the Ordering Document and shall be specified at the time of purchase. Either party may terminate this Agreement (including all related Ordering Documents) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided that GroundControl may terminate this Agreement immediately upon any breach of Section 3.6 (License Restrictions) or if you exceed any other restrictions contained in Section 2 (GroundControl Software Products); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
- Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software, destroy all copies thereof and so certify to GroundControl in writing.
- Survival. Sections 3.6 (License Restrictions), 4 (Ownership), 5 (Payment), 6 (Term of Agreement), 7.3 (Disclaimer of Warranties), 10 (Limitation of Remedies; Indemnification and Damages), 11 (Confidential Information), 12 (Export Compliance) and 13 (General) shall survive any termination or expiration of this Agreement.
Limited Warranty and Disclaimer
- Limited Warranty. GroundControl warrants to you that for a period of thirty (30) days from Delivery (the “Warranty Period”) the Software shall operate in substantial conformity with the Documentation. GroundControl does not warrant that your use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. GroundControl’s sole liability (and your exclusive remedy) for any breach of this warranty shall be, in GroundControl’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or work-around which corrects the reported non-conformity, or if GroundControl determines such remedies to be impracticable within a reasonable period of time, to refund the license fee paid for the applicable Software. GroundControl shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. For the avoidance of doubt, this warranty applies only to the initial Delivery of Software under an Ordering Document and does not renew or reset, for example, with the Delivery of (a) Software updates or maintenance releases or (b) Product Keys.
- Exclusions. The above warranty shall not apply: (i) if the Software is used with hardware or software not authorized in the Documentation; (ii) if any modifications are made to the Software by you or any third party; (iii) to defects in the Software due to accident, abuse or improper use by you; or (iv) to any Evaluation Version or other Software provided on a no charge or evaluation basis.
- Disclaimer of Warranties. THIS SECTION 7 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER GROUNDCONTROL NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
Support and Maintenance
- Terms of Support and Maintenance. Subject to the terms and conditions of this Agreement, and the applicable Ordering Document, GroundControl may offer and you may purchase, including for renewal terms, support and maintenance (“Support and Maintenance Services”) as set forth in GroundControl’s then-current Support and Maintenance Policies set forth in Exhibit A and as specified in your Ordering Document. All Support and Maintenance Services renewals will be subject to the terms and conditions of this Agreement including GroundControl’s then-current Support and Maintenance Policies.
- Terms of Professional Services GroundControl may provide the number of person-days of professional consulting or training services (“Professional Services”) purchased in the applicable Ordering Document or online ordering process. The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of either or both of: (a) assistance with Software installation, deployment, and usage; and (b) training in use of the Software. You shall have a license right to use any deliverables (including any documentation, code, Software, training materials or other work product) delivered as part of the Professional Services (“Deliverables”) solely in connection with your permitted use of the Software, subject to all the same terms and conditions as apply to your Software license (including in Section 3.6 (License Restrictions)), and subject to any additional terms and conditions provided with the Deliverables. You may order Professional Services under a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before GroundControl shall commence work under such SOW. If the parties do not execute a separate SOW, the Services shall be provided as stated on the Ordering Document. You will reimburse GroundControl for reasonable travel and lodging expenses as incurred.
Limitation of Remedies; Indemnification and Damages
- Limitation on Consequential Damages. BUT FOR: (1) YOUR PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (2) EITHER PARTY’S BREACH OF SECTION 11 (CONFIDENTIAL INFORMATION), OR (3) YOUR BREACH OF SECTION 3.6 (LICENSE RESTRICTIONS) OR SECTION 12 (EXPORT COMPLIANCE), NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR COSTS OF COVER), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Limitation on Total Damages. BUT FOR: (1) YOUR PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (2) EITHER PARTY’S BREACH OF SECTION 11 (CONFIDENTIAL INFORMATION), OR (3) YOUR BREACH OF SECTION 3.6 (LICENSE RESTRICTIONS), SECTION 5 (PAYMENT) OR SECTION 12 (EXPORT COMPLIANCE), EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR OWED BY YOU FOR THE SOFTWARE OR SERVICE DIRECTLY CAUSING THE DAMAGES, AND SUCH DAMAGES SHALL BE LIMITED TO THE AMOUNT PAID OR OWED FOR THE TWELVE MONTHS PRECEDING THE ACTION THAT CAUSED THE CLAIM.
- Essential Purpose. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- GroundControl Indemnification. GroundControl shall defend you from and against any claim by a third party alleging that the Software when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold you harmless from and against any damages and costs awarded against you or agreed in settlement by GroundControl (including reasonable attorneys’ fees) resulting from such claim, provided that GroundControl shall have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for GroundControl to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from you. If your use of the Software is (or in GroundControl’s opinion is likely to be) enjoined, if required by settlement or if GroundControl determines such actions are reasonably necessary to avoid material liability, GroundControl may, in its sole discretion: (a) substitute for the Software substantially functionally similar programs and documentation; (b) procure for you the right to continue using the Software; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to you the license fee paid by you prorated for the unused subscription period. The foregoing obligations of GroundControl shall not apply: (1) if the Software is modified by any party other than GroundControl, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with products or processes not provided or authorized by GroundControl; (3) to any unauthorized use of the Software; (4) to any unsupported release of the Software; (5) to any third-party code contained within the Software; or (6) if you settle or make any admissions with respect to a claim without GroundControl’s prior written consent.
THIS SECTION 10.4 SETS FORTH GROUNDCONTROL’S AND ITS LICENSORS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- Indemnification by You. You shall defend GroundControl, its employees, officers directors, customers and suppliers (“GroundControl Indemnitees”) from and against all claims, arising out of (a) any claim by third parties resulting from or relating to any breach by you your Affiliates or Contractors of the terms and conditions of this Agreement; (b) any claim related to the Customer Content; (c) any infringement or misappropriation of any intellectual property rights by you, your Affiliates or Contractors; or (d) any violation of law by you, your Affiliates or Contractors (including but not limited to any law or regulation relating to the privacy and/or security of the Users or Devices) and shall indemnify and hold GroundControl Indemnitees harmless from and against any damages and costs awarded against GroundControl Indemnitees or agreed in settlement by you (including reasonable attorney’s fees) resulting from such claims, provided that you shall have received from GroundControl: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from GroundControl. You may not settle any such claim without GroundControl’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
- Obligations. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by GroundControl (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of GroundControl without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
- Publicity. Notwithstanding Section 11.1, GroundControl may publicly disclose (orally and in writing) that you are a customer of GroundControl and a licensee of the Software, including in a list of GroundControl customers and other promotional materials.
- Export Control. You acknowledge that the Software is subject to United States export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of certain foreign governments. You shall not, and shall not allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Software: (i) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; (ii) to any person or entity on any of the U.S. Government’s Lists of Parties of Concern (http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern); (iii) to any known end-user or for any known end-use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that may be required by any U.S. Government agency having jurisdiction with respect to the transaction; or (iv) otherwise in violation of any export or import laws, regulations or requirements of any United States or foreign agency or authority.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. GroundControl may assign this Agreement to any Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of GroundControl’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without GroundControl’s written consent except that you may assign your rights and obligations under this Agreement, in whole but not in part, without GroundControl’s written consent in connection with any merger, consolidation, sale of all or substantially all of your assets, or any other similar transaction provided that: (i) the assignee is not a direct competitor of GroundControl; (ii) you provide prompt written notice of such assignment to GroundControl; (iii) the assignee is capable of fully performing your obligations under this Agreement; and (iv) the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
- Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
- Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of New York, U.S. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of New York County, New York. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
- Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
- Notices and Reports. Any notice or report hereunder shall be in writing. If to GroundControl, such notice or report shall be sent to GroundControl at 119 West 23rd Street, New York, NY 10011 to the attention of “Legal Department”. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
- Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form, including any electronic invoicing portals and vendor registration processes, employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
- Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by GroundControl for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
- Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- Audit Rights. Upon GroundControl’s written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement. With reasonable prior notice, GroundControl may audit your use of the Software, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to the Software in a manner that is not permitted under this Agreement, then GroundControl may terminate this Agreement pursuant to Section 6 (Term of Agreement) and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties GroundControl may be entitled to under this Agreement and applicable law.
- Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
- Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
- Third-Party Beneficiary. GroundControl, its Affiliates and its licensors may be third party beneficiaries of this Agreement. No other third party, including without limitation your Affiliates or Contractors is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.
Support and Maintenance Policies
The following Exhibit A incorporates the Support and Maintenance Policies presently in effect. GroundControl may revise the terms of this Exhibit A provided that (i) such revision is in connection with a revision to any standard terms under which GroundControl provides support and/or maintenance, (ii) GroundControl provides written or e-mail notice (and/or posting on http://support.groundctl.com or such other URL provided by GroundControl from time to time) of the revised terms at least sixty (60) days prior to the expiration of the applicable then-current subscription term, and (iii) such revised terms only apply to renewal subscription terms (if any) and renewal is subject to mutual agreement.
- Availability. Subject to the terms and conditions herein, GroundControl agrees to use commercially reasonable efforts to make the Software (excluding any offline Software components) available 24 hours a day, 7 days a week, except for: (i) planned downtime, or (ii) any unavailability caused by circumstances beyond GroundControl’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving GroundControl employees), or Internet service provider failures or delays.
Support and Maintenance Services
- Scope. During the applicable term, GroundControl shall use commercially reasonable efforts to provide you the following support and maintenance services with respect to the applicable Software.
- Software Maintenance. GroundControl will provide to you access to all updates, upgrades, maintenance releases and bug fixes to the applicable Software to the extent created and generally released to other GroundControl customers who purchase a license to the applicable Software.
- Support. GroundControl will provide you with access to GroundControl’s customer support personnel via email and the web to assist you in responding to and troubleshooting technical questions regarding the Software, during normal business hours of 8:30 am to 5:30 pm U.S. Eastern Time unless a different level of support is agreed upon in the Ordering Document. Please refer to http://support.groundctl.com (or such other URL provided by GroundControl from time to time).
- Issue Reporting. You may document and report all suspected errors or malfunctions of the Software to GroundControl via email or GroundControl’s case tracking system, and, for any reported errors or malfunctions, cooperate with GroundControl in its bug investigation by phone, email, and through GroundControl’s case tracking system. GroundControl will provide you with a trouble ticket number that you will use to track the status of any confirmed error or malfunction in the applicable Software (i.e., any confirmed failure to meet GroundControl’s specifications described in the relevant Documentation) (“Confirmed Error”). GroundControl may close the trouble ticket without further responsibility if you do not provide requested feedback to GroundControl within ten (10) days of receiving a patch or workaround, or if you fail to respond to a request for additional information or confirm that trouble ticket is resolved. You may at any time add a new trouble ticket.
- Limitations. GroundControl is only responsible to provide you with the support services described herein. GroundControl will be responsible for responding to or troubleshooting a Confirmed Error, however, GroundControl will not be responsible for any errors that cannot be reproduced by GroundControl, or for software, firmware, hardware not supplied by GroundControl, or for information or memory data contained in, stored on or integrated with any Software. Services described herein do not include any support of any failure or defect due to you or your representatives or any damage caused by you or your representatives from improper storage, accident, abuse or misuse of any product or if any product has been used or maintained in a manner not conforming to the requirements in Documentation or in the Agreement, or if any product is used by you or your representative on unsupported platform or hardware or has been altered or modified by you or your representative. Service or repair of any Software by anyone other than GroundControl (or an authorized representative of GroundControl) shall void GroundControl’s obligations herein. As applied to Software, GroundControl’s obligations to provide software maintenance shall apply only to the most current shipping release of the applicable Software and to provide support shall apply only to the current shipping release and the immediately prior release for one (1) year after such prior release has been superseded by the current shipping. If GroundControl agrees to respond to or troubleshoot any errors or problems not covered by the terms of this Agreement, GroundControl may perform such work after receiving Customer’s instruction to proceed at GroundControl’s then-current standard rates.
GroundControl Solutions, Inc.
119 West 23rd Street
New York, New York 10011