BY CLICKING THE SUBMIT BUTTON BELOW AND/OR OBTAINING AND/OR INSTALLING A CELLCONTROL DEVICE AND/OR CELLCONTROL SOFTWARE FROM CELLCONTROL, INC., YOU AGREE TO THE TERMS OF THIS AGREEMENT.
END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is made as of [**DATE] (the “Effective Date”), by and between Cellcontrol, Inc. (“Licensor”), a Delaware corporation, with offices at 7117 Florida Boulevard, Baton Rouge, LA 70806 and [**NAME OF LICENSEE ENTITY] (“Licensee”), at [**ADDRESS].
This Agreement consists of this signature page, together with the Standard Terms and Conditions attached hereto as Exhibit A (the “Standard Terms”). Capitalized terms used on this signature page which are not defined herein shall have the meaning set forth in the Standard Terms.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the day first above set forth.
|LICENSOR: Cellcontrol, Inc.||LICENSEE: [**Name of Licensee Entity]|
|An Authorized Signatory||Name:|
STANDARD TERMS AND CONDITIONS
1. Definitions. As used in this Agreement, the following capitalized terms shall be defined as follows:
a. “Administrator” means an employee of Licensee who is expressly authorized by Licensee to exercise administrative privileges on behalf of Licensee with respect to the Cellcontrol System.
b. “Cellcontrol System” means the system of software, hardware and services known as “Cellcontrol” which is designed to provide protective measures to enhance safety in a vehicle, location or other environment, including, without limitation, the Remote Management Console, Cellcontrol Tags and Operating Software, together with any associated services, documentation, online functionality, updates or upgrades provided by Licensor in connection therewith.
c. “Cellcontrol Tag” means the proprietary hardware device and the software installed thereon which is provided by Licensor for installation in a Covered Environment in connection with certain configurations of the Cellcontrol System. The Cellcontrol Tag has wireless communication capabilities for communicating with the Operating Software.
d. “Confidential Information” means confidential, proprietary or non-public knowledge, data or information in any way relating to the business of Licensor, its affiliates and/or any of their respective current or former shareholders, investors, customers, clients, directors, officers, employees, representatives, agents and/or partners, in any format now or hereafter known (including, without limitation, printed, digital, numerical, text-based, machine-readable, verbally transmitted or otherwise). Confidential Information may include, without limitation, information relating to pricing, fees, sales and marketing strategies, customer lists, potential investments and/or acquisitions, or the manner or method of conducting business.
e. “Covered Environment” means a vehicle or other location which is intended to be covered by the Cellcontrol System.
f. “Operating Software” means the proprietary software for the Cellcontrol System which is provided by Licensor for installation on a User Device, and has the capability of reducing or minimizing the functionality of that User Device when that User Device is located in a Covered Environment. In configurations of the Cellcontrol System which include a Cellcontrol Tag, the Operating Software interacts with the Cellcontrol Tag.
g. “Remote Management Console” means the internet-based, password-protected management interface for the Cellcontrol System that Administrators may access to control individual policies and requirements for each UserID. The Remote Management Console enables Administrators to add or remove Users from the account of the applicable licensee and to set, change, and monitor rules and policies for groups of Users or for individual Users.
h. “Term” has the meaning set forth in Section 2 below.
i. “Third Party Equipment” means User Devices and any and all other third party hardware, software or other accessories (including, without limitation, cell phones, tablets, computers, modems, routers, cables and/or connectors) that may be necessary or appropriate in connection with Licensee’s use of the Cellcontrol System.
j. “Third Party Services” means any and all third party services (including, without limitation, service plans that provide cell phone service, wireless internet service, SMS and/or MMS texting services and/or other data services) that may be necessary or appropriate in connection with Licensee’s use of the Cellcontrol System.
k. “User” means an employee or independent contractor of Licensee who is expressly authorized by Licensee to use the Cellcontrol System pursuant to the license granted to the Licensee under the Agreement.
l. “User Device” means a mobile or other handheld device (e.g., cell phone, smartphone, tablet, laptop, etc.) which is owned and/or used by a User and intended to be covered by the Cellcontrol System.
m. “UserID” means a unique identification number issued or assigned to each User.
2. Term. The license granted to the Licensee under this Agreement will be effective for a period (the “Term”) commencing on the Effective Date and ending three (3) years after the Effective Date (the “Initial Period”). Following the Initial Period, the Term will automatically renew for a series of successive one (1) year renewal periods. Notwithstanding the foregoing, each of Licensor and Licensee will have the right to terminate the Term as of the end of the Initial Period or any 1-year renewal period (as applicable), and for any reason (or no reason), upon not less than sixty (60) days’ prior written notice to the other party.
3. Grant of License: The Cellcontrol System is a proprietary system that is owned by Licensor. It is licensed and not sold. Licensee’s rights to use the Cellcontrol System are limited and subject at all times to the terms and conditions of the license set forth in this Agreement. Licensor grants to Licensee a limited, non-transferable, non-sublicensable, non-exclusive license to use the Cellcontrol System during the Term, subject to the terms and conditions set forth herein. Without limiting the foregoing, Licensee’s rights will include (a) the ability for one or more Administrators to access and control the policies and requirements of each UserID through the Remote Management Console, and (b) where applicable, to install and/or use one or more Cellcontrol Tags in Covered Environments (i.e., if Cellcontrol Tags are deployed as part of that licensee’s configuration of the Cellcontrol System). All rights in the Cellcontrol System other than those specifically granted to Licensee under this Agreement are expressly reserved by Licensor.
4. Payments to Licensor: Licensee shall pay Licensor all fees associated with Licensee’s use of the Cellcontrol System, in accordance with the terms of the Order Form(s) signed by Licensee and Licensor, and Licensor’s invoices issued pursuant thereto, without any deduction, setoff or bank charges. All payments made by Licensee are non-refundable. Late payments (other than amounts that are the subject of a legitimate dispute) will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under applicable law, from the due date until paid. Licensee shall also be required to pay Licensor’s costs of collection, including Licensor’s reasonable attorneys’ fees and court costs, in connection with all late payments. The amounts due to Licensor do not include, and Licensee shall pay, any sales, use, property, value-added or other taxes (including any amounts to be withheld for the purpose of paying the foregoing) relating to, resulting from or based on use of the Cellcontrol System. If for any reason Licensor pays any of the foregoing taxes, then Licensor will have the right to seek reimbursement for all such taxes, and Licensee will promptly reimburse Licensor therefor.
5. Third Party Services and Third Party Equipment: Licensee expressly acknowledges and agrees that: (i) use of the Cellcontrol System may require the use of Third Party Services and Third Party Equipment, including without limitation, to distribute the Cellcontrol System to Users and Administrators, and to communicate with Licensor’s servers via data or SMS (text) transmissions; (ii) Licensee and/or its Users shall be solely responsible for obtaining any and all such Third Party Services and Third Party Equipment; (iii) the use of the Cellcontrol System by Licensee and its Users may result in fees or charges imposed by the providers of such Third Party Services and/or Third Party Equipment; and (iv) Licensee and/or its Users shall be solely responsible for paying any and all such fees and/or charges.
6. Responsibility for Safety: Licensee expressly acknowledges and agrees that the Cellcontrol System is not a guarantee or assurance, and is not intended to be and cannot be considered or relied upon as a guarantee or assurance, of the personal safety of the Users or any other person located in any Covered Environment in which the Cellcontrol System may be usable, accessible or installed. Maintaining the safety of any Covered Environment is ultimately the responsibility of Licensee and the Users. Furthermore, there are many ways in which a User may be distracted, many of which do not involve a User Device. Licensee also expressly acknowledges and agrees that any modification to, tampering with or disabling of any portion of the Cellcontrol System (including any Cellcontrol Tag or Operating Software) is expressly prohibited under this Agreement. Without limiting the foregoing (or the provisions of Sections 12 through 16 below), Licensor shall have no liability for (a) the negligence of any User while driving or operating a vehicle or any other equipment in a Covered Environment, or (b) any instance where any modification of, tampering with or disabling of any portion of the Cellcontrol System has occurred or been attempted.
7. Communications Policy: As a condition of this license, Licensee expressly authorizes Licensor to communicate with Licensee, its Administrators and/or Users by any and all appropriate methods in furtherance of the maintenance and operation of the Cellcontrol System and/or the administration of this Agreement (including, without limitation, via push notifications, emails or text messages).
8. Users and Administrators:
a. Users. Each User (through the UserID associated with such User) will be governed by, and will be deemed to have agreed to be subject to, a set of rules and policies that will limit the functionality of his/her User Devices in a Covered Environment.
b. Administrators. Licensee shall designate one or more of its employees who will act as Administrators with respect to Licensee’s account under this Agreement. The Cellcontrol System will provide each Administrator with certain administrative privileges with respect to Licensor’s account within the Cellcontrol System (which other Users will not have), including the ability to access and control the rules and policies associated with the UserID for each User. Licensee will maintain, and will cause all Administrators to maintain, the security of all information relating to Licensee’s account access under this Agreement, including login credentials; and Licensor shall have no responsibility for any loss, damages or liability in connection with any lost or stolen account access information. At all times during the Term, Licensee will ensure that there is at least one Administrator designated with respect to Licensee’s account. Licensee will promptly cancel the UserID or other credentials of any Administrator or User who (i) ceases to be engaged by Licensee as an employee or independent contractor, (ii) Licensee no longer wishes to have access to the Cellcontrol System for any other reason, or (iii) Licensee knows or reasonably believes is causing Licensee to breach any provision of this Agreement or is in any way misusing the Cellcontrol System; and Licensee will promptly notify Licensor of any such cancellation.
c. Licensee will ensure that all Users and Administrators comply with all of the terms and conditions of this Agreement.
9. Limitations On Use:
a. Licensee shall not permit anyone other than Users and Administrators to access and/or use the Cellcontrol System under Licensee’s account.
b. Licensee shall not, and shall not permit others to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or underlying ideas or algorithms of any part of the Cellcontrol System, (ii) modify, adapt, translate, alter, change or create derivative works of all or any part of the Cellcontrol System, (c) download, copy or collect information that could be used to copy all or any part of the Cellcontrol System, or (d) access or use all or any part of the Cellcontrol System for any purpose other than the uses expressly authorized in this Agreement.
10. Ownership: The Cellcontrol System and all components thereof (including, without limitation, the Cellcontrol Tag, the Operating Software, the Remote Management Console and all other hardware, software, code, interfaces, text, photographs, graphics, animation, applets, music, video and audio incorporated therein and any related user guides and documentation related thereto), and any marks, logos, taglines, trade names, trade dress, trademarks, service marks, URLs and/or domain names related to the Cellcontrol System, and all intellectual property rights therein (including, without limitation, all rights under patent, copyright, trademark and trade secret laws), are and shall remain the sole and exclusive property of Licensor, throughout the universe and in perpetuity. Furthermore, if Licensee or any of its Administrators or Users suggests new features or functionality that Licensor, in its sole discretion, adopts for or incorporates in the Cellcontrol System, then all such new features or functionality will be the sole and exclusive property of Licensor, and Licensee (on its own behalf and on behalf of its Administrators and Users) hereby irrevocably grants, transfers and assigns to Licensee all right, title and interest in and to such new features or functionality, throughout the universe and in perpetuity. Licensor reserves the right, in its sole discretion, at any time and without any obligation to notify Licensee or any other liability to Licensee, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the Cellcontrol System.
11. Support: Licensor currently offers support for the Cellcontrol System through its website (currently located at http://www.cellcontrol.com). Licensor reserves the right to change the support that it offers at any time with or without notice to Licensee.
12. Disclaimer of Warranties: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR PROVIDES THE CELLCONTROL SYSTEM ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. LICENSEE EXPRESSLY ASSUMES ALL RISKS AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF THE CELLCONTROL SYSTEM. LICENSOR does not make any warranties, express or implied, concerning the CELLCONTROL SYSTEM, INCLUDING, WITHOUT LIMITATION, (A) ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, CONFORMITY TO ANY SPECIFICATION OR DESCRIPTION, EXISTENCE OF ANY LATENT OR PATENT DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT, OR (B) ANY WARRANTY THAT the CELLCONTROL SYSTEM will meet all of LICENSEE’S requirements, will operate with ALL THIRD PARTY SERVICES AND/OR THIRD PARTY EQUIPMENT, or that the use of the CELLCONTROL SYSTEM will be error free. THESE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THE AGREEMENT. LICENSOR understands and agrees that it uses the CELLCONTROL SYSTEM.
13. Limitations of Liability: Notwithstanding anything to the contrary expressed or implied herein:
a. In no event shall LICENSOR be liable to LICENSEE OR ANY OF ITS USERS, ADMINISTRATORS OR ANY other EMPLOYEE, CONTRACTOR, AGENT OR OTHER PERSONNEL (THE “LICENSEE PARTIES”) for ANY OF THE FOLLOWING, WHETHER LICENSEE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES: (1) any indirect, special, consequential, punitive or exemplary damages, including lost profits, LOST SAVINGS; (2) ANY CLAIM ASSERTED BY ANY THIRD PARTY; (3) TO THE EXTENT ALLOWED BY APPLICABLE LAW, ANY DAMAGES RESULTING FROM DEATH OF OR INJURY TO LICENSEE, ANY USER, ANY ADMINISTRATOR, OR ANY OTHER EMPLOYEE, CONTRACTOR, AGENT, OTHER PERSONNEL OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE, IMPROPER USE, OR INABILITY TO USE THE CELLCONTROL SYSTEM; OR (4) ANY LEGAL FEES OR OTHER EXPENSES RELATED THERETO.
b. THE TOTAL LIABILITY OF LICENSOR TO THE LICENSEE PARTIES WILL BE LIMITED TO THE LESSER OF (1) LICENSEE’S ACTUAL DIRECT DAMAGES, IF ANY OR (2) THE CUMULATIVE PAYMENTS ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE PURSUANT TO THIS AGREEMENT during the twelve (12) month period immediately preceding the date on which the applicable claim arose.
c. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.
d. The limitations set forth in this Section 13 shall apply regardless of the form, nature or type of claim or cause of action asserted by any licensee party, whether in contract, tort or otherwise, and shall survive any termination of this Agreement, regardless of the reason for such termination.
e. Notwithstanding the foregoing, the parties acknowledge that, in some jurisdictions, applicable law does not allow the exclusion or limitation of incidental, consequential or special damages, the exclusion of implied warranties, or limitations on how long a given warranty may last, so some of the above limitations may not apply.
14. Exclusive Remedy for Defective Hardware: If any Cellcontrol Tag or other hardware provided by Licensor is defective, then Licensee’s exclusive remedy will be to receive a replacement Cellcontrol Tag from Licensor. This exclusive remedy is an essential condition of this Agreement.
15. Licensee’s Liability for Lost or Damaged Hardware: If any Cellcontrol Tag or other hardware provided by Licensor is lost or damaged, then Licensee shall be required to reimburse Licensor for the reasonable replacement cost (as specified by Licensor).
16. Indemnification: Licensee will indemnify, defend and hold harmless Licensor and its affiliates, and their respective officers, directors, shareholders, employees, successors and assigns, from and against any loss, claim, judgment, liability, damage, action or cause of action (including reasonable attorneys' fees and court costs) arising out of or in connection with (a) any use of the Cellcontrol System, (b) any breach by Licensee of its obligations under this Agreement, (c) any negligence or willful misconduct of Licensee, its Users, Administrators, or other employees, contractors, personnel or agents, and (d) claims by any of Licensee’s employees, contractors, agents or other personnel for compensation of any kind, including for injuries or damages under workmen’s compensation or similar laws.
17. Termination: In the event either party commits a material breach of this Agreement, the other party may, upon thirty (30) days’ prior written notice, terminate this Agreement; provided, however, that this Agreement shall not be terminated if, with respect to breaches that by their nature are capable of being cured, the breaching party cures the breach within thirty (30) days after receipt of the notice of breach. Upon termination of this Agreement, the Term, the license herein granted to Licensee and all of Licensee’s rights with respect to the Cellcontrol System will immediately cease and terminate.
18. Governing Law; Jurisdiction; Venue: This Agreement will be governed by and construed in accordance with the laws of the State of Delaware in the United States, without reference to its conflict of laws principles. Each party hereby consents to the personal jurisdiction of the State of Delaware, acknowledges that venue is proper in any state or federal court in the State of Delaware, agrees that any action arising out of or related to this Agreement must be brought exclusively in a state or federal court in the State of Delaware, and waives any objection it has or may have in the future with respect to any of the foregoing. The parties expressly agree that this Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
19. Force Majeure: Neither party will be deemed to be in breach of its obligations under this Agreement by reason of its failure to perform its obligations hereunder if such failure is due to fire, flood, earthquake or other natural disaster; labor dispute; terrorist act or act of war; law, decree or order by any governmental authority; or any other cause beyond such party’s control. In no event will the foregoing sentence excuse Licensee’s payment obligations hereunder, however.
20. Waiver: Failure or delay to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement will not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times will not be deemed a waiver or relinquishment of that right or power at any other time.
21. Severability: All provisions of this Agreement apply to the maximum extent permitted by applicable law. If a court of competent jurisdiction finds any part of this Agreement to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in full force and effect.
22. No Third Party Beneficiaries: Except as expressly set forth herein, nothing in this Agreement shall be construed as giving any person or entity (other than Licensor, Licensee and their respective successors and permitted assigns) any right, remedy or claim under or in respect of this Agreement or any provision hereof.
23. Notices: All notices sent under this Agreement shall be in writing and shall be sent by one of the following methods, with confirmation of receipt: (i) hand delivery, (ii) express courier service (such as FedEx or UPS) or (iii) via email or fax, together with a confirmation copy mailed via USPS, postage prepaid. All notices shall be sent to the applicable party at the address for such party set forth on the top of page 1 of this Agreement. If either party wishes to change the address to which notices to it are to be sent, it may do so by providing the new address, in writing, to the other party.
24. Compliance with Laws: Licensee shall comply with all applicable laws and regulations (as may be amended from time tom time) in performing its obligations under this Agreement.
25. Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the use of the Cellcontrol System and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by the parties. Neither the course of conduct between parties nor trade practice will act to amend or modify any provision of this Agreement.
26. Assignment: Licensor may assign this Agreement, in whole or in part, at any time, with or without notice to Licensee, to any subsidiary, affiliated or controlling entity, to any person or entity owning or acquiring all or a substantial portion of the stock or assets of Licensor, and such rights may be similarly assigned by any such assignee. Licensee may not assign, delegate or otherwise transfer this Agreement, or assign, transfer or sublicense any rights or duties under this Agreement.
27. Periodic Modifications to Standard Terms. Mobile technology and applicable laws, rules and regulations related thereto are subject to frequent changes. Accordingly, Licensor reserves the right to modify the terms and conditions of these Standard Terms at any time in order to comply with those changes. Any such modifications will be effective as of the date Licensor posts those modifications on Licensor’s website. Licensee’s continued use of the Cellcontrol System after such effective date will constitute Licensee’s agreement to those modified Standard Terms. Licensee should review these Standard Terms (as posted on Licensor’s website) on a regular basis to stay current as to the Standard Terms which apply to Licensee’s use of the Cellcontrol System.
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