End User License Agreement
This End User License Agreement (“Agreement”) is a binding contract between you, the individual completing the order for, or installation of, or access to, or payment for, or commencing the use of the products, materials and/or services described below (“Licensee”) and Pillar Technology Group, L.L.C. (“Licensor”) and governs Licensee’s use of Licensor’s Software, products, materials, and/or services. The license granted hereunder is conditioned upon Licensee’s acceptance of the terms set forth herein.
1. Agreement—Please Read Carefully.
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON YOU (a) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (b) REPRESENT AND WARRANT THAT: (i) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (ii) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT ACCESS THE SOFTWARE AND/OR DOCUMENTATION. LICENSEE UNDERSTANDS AND ACKNOWLEDGES THAT LICENSOR WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH LICENSEE WITHOUT LICENSEE’S AGREEMENT TO BE FULLY BOUND BY THE TERMS OF THIS AGREEMENT.
For purposes of this Agreement, the following terms have the following meanings:
- “Authorized Users” mean the individual persons of Licensee authorized to use the Software pursuant to the license granted under this Agreement.
- “Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use, or technical specifications of the Software.
- “Licensee” has the meaning set forth in the preamble.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Licensor” has the meaning set forth in the preamble.
- “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
- “Premium Services” has the meaning set forth in Section 7.
- “Software” means the StepItUp software learning program for which Licensor is licensing to Licensee.
- “Term” has the meaning set forth in Section 12.
- “Third Party” means any Person other than Licensee or Licensor.
- “Third-Party Licenses” has the meaning set forth in Section 4.
- “Update” has the meaning set forth in Section 8.
3. License Grant and Scope.
Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 3 and subject to all conditions and limitations set forth in Section 5 or elsewhere in this Agreement. The intended use of the Software is company education and skill development, and Licensee may not use the Software for any other purpose. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
- Access in accordance with the Documentation the Software.
- Use and run the Software in accordance with this Agreement and the Documentation, solely as set forth in the Documentation, and solely for Licensee’s internal business purpose.
4. Third-Party Materials.
The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
5. Use Restrictions.
Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
- use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 3;
- allow any Person who is not an Authorized User of Licensee to access and use the Software;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
- combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
- copy the Software or Documentation, in whole or in part;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
- use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
- power generation systems;
- aircraft navigation or communication systems, air traffic control systems or any other transport management systems;
- safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and
- military or aerospace applications, weapons systems or environments;
- use the Software or Documentation in violation of any law, regulation or rule;
- use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage;
- violate the intellectual property rights of other Persons, including patents, trademarks, trade secrets, copyrights, or other proprietary rights; and
- post, upload, or transmit to Licensor any content that contains software viruses, worms, or any other harmful code.
6. Responsibility for Use of Software.
- Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
- Each Authorized User shall:
- choose a strong and secure password;
- keep his or her password secure and confidential; and
- not transfer any part of his or her account to another.
- Continuous internet access is required to access the Software, and is not provided by Licensor. Such access is the sole responsibility of Licensee.
- The Software is not a storage service. Licensor has no obligation to store, maintain, or provide Licensee a copy of any content or information that Licensee or others provide, except to the extent required by applicable law.
7. Payment for Additional Services; Access Availability.
- If Licensee purchases any of Licensor’s paid services (“Premium Services”), Licensee agrees to pay Licensor the applicable fees and taxes. Failure to pay these fees may result in the termination of Licensee’s access to the Software and/or Premium Services. Licensee’s purchase may be subject to foreign exchange fees or differences in prices based on location (i.e. exchange rates). Licensee authorizes Licensor to store and continue billing Licensee’s payment method (i.e. credit card) even after it has expired, to avoid interruptions in Licensee’s service (i.e subscriptions) and to facilitate easy payment for new services. Licensee must pay Licensor for applicable fees and taxes unless Licensee cancels the Premium Service, in which case Licensee agrees to still pay these fees through the end of the applicable subscription period. Taxes are calculated based on the billing information that Licensee provides Licensor at the time of purchase.
- Licensor may suspend or end any access to the Software or Premium Services, or change and modify prices prospectively in Licensor’s discretion. To the extent allowed under law, these changes may be effective upon notice provided to Licensee.
8. Maintenance and Support.
Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as Licensor makes generally available to licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
9. Collection and Use of Information.
10. Intellectual Property Rights.
Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software (including but not limited to all source code, interfaces, graphics, animation, and applets incorporated therein) and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and shall fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights. If Licensee suggests new features or functionality that Licensor, in its sole discretion, adopts for the Software, such new features or functionality will be the sole and exclusive property of Licensor and any and all claims of Licensee as to the same are hereby waived and released. Licensor reserves the right, in its sole discretion and without incurring any liability to Licensee, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the Software from time to time.
11. Licensee’s Content.
As between Licensee and Licensor, Licensee owns the content and information that Licensee submits or posts to the Software, and Licensee is only granting Licensor the following non-exclusive license: a worldwide, transferable, and sublicensable right to use, copy, modify, distribute, publish, and process, information and content that you provide through the Software, without any further consent, notice, or compensation to Licensee. Licensee can end this license for specific content by deleting such content from the Software or generally by terminating Licensee’s access to the Software. Licensor may edit and make formatting changes to Licensee’s content (such as translating it, modifying the size, layout or file type or removing metadata), but Licensor will not modify the meaning of Licensee’s expression.
12. Term and Termination.
- This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
- Either party may terminate this Agreement at any time with notice to the other.
- Upon termination of this Agreement, the licenses granted hereunder shall also terminate, and Licensee shall cease accessing the Software and destroy all Documentation. No termination shall affect Licensee’s obligation to pay all fees that may have become due before such termination, or entitle Licensee to any refund.
13. Disclaimer and Limitation of Liability.
- THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY. IF LICENSEE COULD HAVE AVOIDED DAMAGES BY TAKING REASONABLE CARE, LICENSOR WILL NOT BE LIABLE FOR SUCH LOSSES.
- IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE THOUSAND U.S. DOLLARS ($1,000.00 USD).
- THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN LICENSOR AND LICENSEE AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G. WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) AND EVEN IF LICENSOR HAS BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
14. Export Regulation.
The Software and Documentation may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
- 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 or related to 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. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
- Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations, or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
- This Agreement and all annexes and exhibits attached hereto constitute the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate, or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- 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 on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If any term or 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.
- The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16. How to Contact Licensor.
If Licensee desires to send notices, please send to the following:
By U.S. Mail
Pillar Technology Group, L.L.C.
Attn: Step It Up
580 N. 4th Street, Suite 190
Columbus, Ohio 43215
Last Updated: 2015