END USER LICENSE AGREEMENT
Last Updated: May 28, 2020
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Agreement to Terms
1.1 Agreement to be Bound. By using our Service, you (“User,” “you,” or “your”) agree to be bound by this Agreement. If you don’t agree to be bound by this Agreement, do not use the Service. If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “User,” “you,” and “your” will refer to that company or other legal entity.
1.2 Changes to Terms or Service. We may update this Agreement at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Agreement on the Site or through other communications. It’s important that you review the Agreement whenever we update them or you use the Service. If you continue to use the Service after we have posted updated Agreement, you are agreeing to be bound by the updated Agreement. If you don’t agree to be bound by the updated Agreement, then, you may not use the Service anymore. Because our Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.
2. Access to the Service
2.1 Access. Subject to User’s compliance with the terms and conditions of this Agreement, Ecotrak hereby grants User a worldwide, non-exclusive, non-transferable, non-sublicensable: (i) right to use and access the portions of the Service ordered by User, only during the Term and solely for User’s internal business purpose consistent with the intended use of the Service as described in the then-current documentation made available by Ecotrak for the Service (“Documentation”).
2.2 Accuracy of Account Information. If you want to use certain features of the Service, you’ll have to create an account (“Account”). It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you do not, we might have to suspend or terminate your Account. You agree that you will not disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
2.3 Usage Limits. The Service is subject to the usage limits specified in the applicable Order Form or the Documentation. Unless otherwise expressly specified in an Order Form: (a) a quantity in the applicable Order Form refers to the number of authorized Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a user identification may be reassigned by you to a new individual replacing one who no longer requires ongoing use of the Service. If you exceed the contractual usage limit, you will execute an Order Form for additional quantities of the applicable Service promptly upon Ecotrak’s request and pay any invoice for excess usage, all without limitation of Ecotrak’s rights and remedies.
3. Responsibilities and Restrictions
3.1 Restrictions. Except as expressly permitted by this Agreement, User will not, and will not permit any third party to, use the Service in any manner beyond the scope of the rights expressly granted in this Agreement. Except as expressly permitted by this Agreement, User will not at any time, directly or indirectly, and will not permit any third party to: (a) modify or create derivative works of the Service, in whole or in part; (b) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Service, in whole or in part; (c) sell, resell, rent or lease use of the Service to any other third party, or otherwise allow the Service to be used for any purpose other than for the benefit of User in accordance with this Agreement; (d) use the Service to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data (including any User Content) for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Service; (e) interfere with, or disrupt the integrity or performance of, the Service, or any data or content contained therein or transmitted thereby; (f) access or search the Service (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Service features provided by Ecotrak for use expressly for such purposes; (g) use the Service, Documentation or any other Ecotrak’s Confidential Information to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Service; (h) use the Service in any way that exceeds any usage limitations as specified in any Documentation; (i) delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Service or the Service Output as delivered; (j) access, tamper with, or use non-public areas of the Service, Ecotrak’s computer systems, or the technical delivery systems of Ecotrak’s providers; (k) attempt to probe, scan or test the vulnerability of any Ecotrak system or network or breach any security or authentication measures; (l) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Ecotrak or any of Ecotrak’s providers or any other third party (including another user) to protect the Service; (m) violate any applicable law or regulation; or (n) encourage or enable any other individual to do any of the foregoing.
3.2 Third Party Software. The Service may include, or may provide User with access to, software, source code or other technology licensed to Ecotrak from third parties, and which may be owned by such third parties (collectively, “Third Party Software”). User acknowledges and agrees that Third Party Software is provided solely on an “AS IS” basis, and that Ecotrak does not make any warranties or guarantees regarding Third Party Software and is not responsible for the operation or failure of, or any errors or bugs in, any Third Party Software.
3.3 Third Party Services. Certain features and functionalities within the Service as Ecotrak determines in its sole discretion may allow User to interface or interact with, access and/or use compatible third party services, products, technology and content (collectively, “Third Party Services”) through the Service. User hereby acknowledges and agrees that: (a) Ecotrak is not the provider of the Third Party Services and is not responsible for any compatibility issues, errors or bugs in the Service or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto; and (b) User is solely responsible for maintaining the Third Party Services and obtaining any associated licenses and consents necessary to use the Third Party Services in connection with the Service.
3.4 User Content. “User Content” means information and materials provided or made accessible to Ecotrak by or on behalf of User for the purpose of receiving or using the Service, including electronic data or information submitted by or for User to the Service or collected and processed by or for User using the Service. User will: (a) provide Ecotrak with the User Content in the form and format requested by Ecotrak, or as otherwise required to access and use the Service; (b) be responsible for all User Content; (c) ensure compliance with all laws, obligations, rules, and regulations applicable to its use of the Service; and (d) obtain all waivers, consents and other rights necessary for Ecotrak to use the User Content to provide the Service to User.
4.1 Term. This Agreement shall begin on User’s use of or access to the Service and shall remain in effect for as long as User continues to use the Service, unless terminated earlier in accordance with this Agreement or with the applicable Order Form (the “Term”).
4.2 Suspension, Limitation or Termination. We may suspend, terminate or limit your access to and use of the Service, at our sole discretion, at any time and without notice to you. [Without limiting the foregoing, Ecotrak may, without liability to User, to immediately suspend, terminate or limit User’s access to any or all part of the Service at any time in the event: (a) that Ecotrak reasonably suspects that the Service is being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Documentation; (b) that Ecotrak determines that the Service is being used in an unauthorized or fraudulent manner; (c) that Ecotrak determines that the use of the Service adversely affects Ecotrak’s equipment or service to other customers; (d) Ecotrak is prohibited by an order of a court or other governmental agency from providing the Service; or (e) any other event which Ecotrak determines, in its sole discretion, may create a risk to the Service or to any other customers of the Service. Without limitation, Ecotrak will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of User’s right to use the Service in accordance with this Agreement.
4.3 Effect of Termination. Upon termination or expiration of this Agreement: (a) the license and right granted under Sections 2.1 and 5.1 will terminate; (b) User will immediately cease using the Service, and will destroy all copies of all Documentation or other content provided by Ecotrak hereunder; (c) Ecotrak will have no further obligation to provide access to the Service or User Content; (d) User will pay any unpaid fees; and (e) User will return or destroy all copies of Confidential Information in accordance with Ecotrak’s direction.
4.4 Survival. Sections 3.1 (Restrictions), 3.2 (Third Party Software), 3.3 (Third Party Services), 3.5 (User Content), 4.3 (Effect of Termination), 4.4 (Survival), 5 (Intellectual Property Rights), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Dispute Resolution; Arbitration Agreement; No Class Action) and 11 (General Provisions) are expressly intended to survive any expiration or termination of this Agreement.
5. Intellectual Property Rights
5.1 Ecotrak. Subject to User’s compliance with the terms and conditions of this Agreement, Ecotrak hereby grants User a worldwide, non-exclusive, non-transferable, non-sublicensable license to use, reproduce, publicly display and publicly perform the Service Output (as defined herein), only during the Term and solely for User’s internal business purpose consistent with the intended use of the Service as described in the Documentation. Subject to the right and license granted to User in Section 2.1 and this Section 5.1, Ecotrak (and its licensors, where applicable) has and retains ownership of, and all intellectual property rights relating to, the Service and the Service Output, and any modifications, improvements or derivatives of the foregoing. “Service Output” means all data, information and materials generated by the Service based on the User Content, but excluding any User Content incorporated therein.
5.2 User Content. User hereby grants Ecotrak a non-exclusive, worldwide, royalty-free right and license to use, reproduce, publicly display, publicly perform, modify, transmit, and make derivative works of the User Content: (a) during the Term only, in connection with the operation and provision of the Service; and (b) on a perpetual basis, as incorporated into the Service Output in connection with any business purpose (including for the purpose of improving and developing Ecotrak’s current and future products, services, methods and processes). Subject to the foregoing, User has and retains ownership of the User Content, and any intellectual property rights therein.
5.3 Feedback. User grants to Ecotrak a perpetual, non-exclusive and royalty-free license to use, modify, distribute and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information or ideas provided by User or any third party on behalf of User relating to the Service or any of Ecotrak’s current and future products and services. Ecotrak will not be obligated to credit User for any such feedback or hold any feedback in confidence.
5.4 Removal of User Content. If applicable, you can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Service. We are not responsible or liable for the removal or deletion of (or the failure or inability to remove or delete) any of your User Content.
6.1 Confidential Information. “Confidential Information” means all data and information that is submitted to or learned by User in connection with this Agreement, including information relating to Ecotrak’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Without limiting the foregoing, the following will be deemed Confidential Information: the Service and the terms and conditions of this Agreement. User may not disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information to, or for the use or benefit of, any person or entity without Ecotrak’s prior written consent, or use such Confidential Information for purposes outside the scope of this Agreement. User may disclose the Confidential Information only to its employees, consultants and agents who need to know such confidential information for the purposes of this Agreement. User will advise its employees, consultants and agents of their responsibilities under this Agreement and be responsible for any breach of this Section 6 by its employees, consultants or agents. Confidential Information will not include information that is: (a) part of, or becomes part of, the public domain (other than by disclosure by User in violation of this Agreement); (b) previously known to User without an obligation of confidentiality; (c) independently developed by User outside this Agreement; or (d) rightfully obtained by User from third parties without an obligation of confidentiality.
6.2 Exclusions/Remedies. The obligations in this Section do not restrict any disclosure by User pursuant to any applicable law, or by order of any court or government agency (provided that User will give prompt notice to Ecotrak of such order so that Ecotrak may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which User is or should be aware (whether or not resulting from a breach), User will immediately notify Ecotrak in writing detailing all information known to User about the compromise, the Confidential Information affected, and the steps taken by User to prevent the recurrence of such breach and to mitigate the risk to Ecotrak. The parties agree that in the event of a breach or anticipated breach of this Section 6, Ecotrak will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
7. Representations and Warranties
7.1 User Representations and Warranties. User represents and warrants to Ecotrak that: (a) User has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (b) it will comply with all applicable laws in its use of the Service and Service Output, including all applicable data protection and privacy laws such as the EU General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA); (c) it has obtained and will obtain all necessary authorizations, lawful bases, consents, permissions and licenses with respect to any and all User Content to the extent necessary: (i) for User to grant the rights and licenses hereunder to Ecotrak; (ii) for User and Ecotrak to comply with all applicable laws, rules and regulations; and (iii) for User to grant the licenses contemplated by Section 5.2 without violating any third party intellectual property, privacy rights or any other proprietary rights; (d) neither your User Content, nor your use and provision of your User Content to be made available through the Service, nor any use of your User Content by Ecotrak on or through the Service will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (e) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (f) User is not listed on any U.S. Government list of prohibited or restricted parties.
7.2 ECOTRAK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ECOTRAK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE (INCLUDING THE SERVICE OUTPUT) IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ECOTRAK DOES NOT WARRANT THAT THE SERVICE WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED. ECOTRAK WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-ECOTRAK APPLICATIONS. ECOTRAK DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS. WITHOUT LIMITING THE FOREGOING, USER ACKNOWLEDGES AND AGREES THAT ECOTRAK DOES NOT PROVIDE ANY FRAUD DETECTION SERVICES UNDER THIS AGREEMENT AND THAT ECOTRAK DOES NOT WARRANT THAT USE OF THE SERVICE WILL HAVE ANY IMPACT ON SALES OR REVENUE. ECOTRAK HAS NO OBLIGATION WITH RESPECT TO THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.3 No Liability for User Content. WITHOUT LIMITING SECTION 7.2, USER ACKNOWLEDGES THAT ECOTRAK IS NOT REQUIRED TO PRE-SCREEN OR MONITOR THE USER CONTENT. UNDER NO CIRCUMSTANCES WILL ECOTRAK BE LIABLE IN ANY WAY FOR ANY USER CONTENT OR SERVICE OUTPUT, INCLUDING LIABILITY FOR ANY ERRORS, INACCURACIES, OR OMISSIONS THEREIN, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF THIS AGREEMENT OR APPLICABLE LAWS. USER ACKNOWLEDGES THAT USER IS SOLELY RESPONSIBLE FOR MAINTAINING ADEQUATE SECURITY AND CONTROL OF ANY AND ALL IDS, PASSWORDS, HINTS, PERSONAL IDENTIFICATION NUMBERS (PINS), OR ANY OTHER CODES THAT USER USES TO ACCESS OR IN RELATION TO THE SERVICE.
8.1 Indemnification by User. User will defend Ecotrak against any claim, demand, suit or proceeding made or brought against Ecotrak by a third party alleging (a) that the User Content (or Ecotrak’s use thereof), or User’s use of any Service in breach of this Agreement, violates, infringes or misappropriates a third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of this Agreement by User; or (c) any demand for compensation or benefits, or any other claim, related to User’s use of or decision based on the Service (collectively, a “Claim Against Ecotrak”), and will indemnify Ecotrak from any damages, attorney fees and costs incurred by Ecotrak as a result of a Claim Against Ecotrak. Ecotrak will: (i) promptly gives User written notice of the Claim Against Ecotrak; (ii) gives User sole control of the defense and settlement of the Claim Against Ecotrak (except that User may not settle any Claim Against Ecotrak unless it unconditionally releases Ecotrak of all liability); and (iii) gives User all reasonable assistance.
9. Limitation of Liability.
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ECOTRAK BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ECOTRAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ECOTRAK, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) FIFTY ($50); AND (B) AMOUNTS PAID BY USER TO ECOTRAK IN THE 12-MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER. Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations will apply to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in this Agreement will prejudice such rights that you may have as a user of the Service.
10. Dispute Resolution; Arbitration Agreement; No Class Action
10.1 Dispute Resolution. The parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section. A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.
10.2 No Class Action. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the parties may be consolidated with any other arbitration proceeding involving Ecotrak and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of User and Ecotrak, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section.
10.3 Governing Law. This Agreement, and any Dispute arising out of or related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of User’s country of origin or where User accesses the Service. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements may only be filed and resolved by state or Federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Ecotrak may obtain injunctive or other equitable relief in any court of competent jurisdictions in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.
11. General Provisions
11.1 Force Majeure. Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
11.2 Notices. Any notices required under the provisions of these Terms must be given in writing by way of email to the following addresses: (a) for notices to Ecotrak, to and (b) for notices to you, the email address you provided during registration. Notices will be effective when sent.
11.3 Export Control. User will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from Ecotrak, without first complying with the United States and all other applicable government laws and regulations governing the export, re-export, and import of those items.
11.4 Miscellaneous. User may not assign, delegate, or otherwise transfer its rights or obligations under this Agreement in whole or in part, without Ecotrak’s prior written consent. Ecotrak may freely assign this Agreement without giving prior notice or obtaining User’s prior consent. This Agreement will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the parties may agree in writing. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Neither party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other party in any manner. Nothing contained in this Agreement will be deemed to create any third party beneficiary right upon any third party whatsoever. Each of the parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”.