End User License Agreement (EULA)
EPIANALYTICS SOFTWARE LICENSE TERMS
THIS IS A CONTRACT. BY INSTALLING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
As part of your use of the Service, EpiAnalytics (EPI) will provide you with a browser interface, data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement. Note that because the Service is a hosted, online application, EPI occasionally may need to notify you of important announcements regarding the operation of the Service, for routine system maintenance including software updates.
1. Subscription License Grant & Restrictions
EPI hereby grants you, a non-exclusive, non-transferable right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by EPI. You shall not, under any circumstances: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or audio or visual information, documents, software, products or services contained or made available to you in the course of using the Service (“Content”) in any way; (ii) modify or make derivative works based upon the Service or Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer, reverse compile, disassemble the software, or access the Service to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features functions or graphics of the Service.
2. Your Responsibilities
You are responsible for all activity within your account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify EPI immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to EPI immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected; and (iii) not impersonate another EPI user or provide false identity information to gain access to or use the Service.
3. Customer Data and Privacy
EPI does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). EPI shall comply with all applicable laws and regulations, including but not limited to data privacy laws, with respect to Customer Data. EPI represents and warrants that it has appropriate security measures in place to protect Customer Data and (a) shall use Customer Data solely for your purposes and to fulfill its obligations under this Agreement; (b) shall never sell, rent, or disclose any Customer Data to a third party; and (c) shall only use the Customer Data to better understand the quality and use of your products and services, and to help provide your customers with customized information related to their preferences.
4. Intellectual Property
EPI owns all rights, title and interest, including all related Intellectual Property Rights, in and to EPI Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. For purposes of this Agreement, Intellectual Property Rights are defined as unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. EPI Technology includes all proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by EPI in providing the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, EPI Technology or Intellectual Property Rights owned by EPI.
This Agreement commences on the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service (“Effective Date”). The initial term of this agreement will be as you elect on the form evidencing the initial subscription for the Service (“Initial Term”) specifying, among other things, the services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties (“Order Form”). The initial Order Form and any subsequent Order Forms will be incorporated into and become a part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail. Upon expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at EPI’s then current fees (“Renewal Term”).
6. Fees and Payments
You shall pay all fees in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial fees will be equal to what is agreed upon in the initial Order Form. Payments may be made monthly, quarterly, or annually, consistent with the Initial Term, or as otherwise mutually agreed upon.
7. Billing and Renewal
EPI charges and collects in advance for use of the Service. Unless terminated pursuant to section 9, EPI will automatically renew and issue an invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the license fee in effect during the prior term, unless EPI has given you at least thirty (30) days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis.
If your account becomes delinquent for more than sixty (60) days, EPI reserves the right to charge interest at a rate of one and one-half percent (1 ½%) per month or the highest rate allowed by applicable law, whichever is lower. Additionally, if your account falls into arrears for more than ninety (90) days, EPI reserves the right to suspend Services until such non-payment is cured.
Either Party may terminate this Agreement by providing written notice sixty (60) days prior to the end of the Initial Term or any Renewal Term. Either party may terminate this Agreement for cause upon the other party's material breach of this Agreement, provided that (a) the non-breaching party sends written notice to the breaching party describing the breach in reasonable detail, (b) the breaching party does not cure the breach within twenty (20) days following its receipt of such notice (the "Notice Period"), and (c) following the expiration of the Notice Period, the non-breaching party sends a second written notice to the breaching party indicating the non-breaching party's election to terminate this Agreement.
10. Representation & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. EPI represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
11. Mutual Indemnification
EPI agrees to defend, indemnify and hold you harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by EPI of its representations or warranties; or (iii) a claim arising from breach of this Agreement by EPI. You shall indemnify and hold EPI harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement. EPI shall have no indemnification obligation, and you shall indemnify EPI pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business processes.
12. Disclaimer of Warranties
EPI MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. EPI DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY EPI.
13. Internet Delays
Services may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. EPI is not responsible for any delays, delivery failures or other damage resulting from such problems.
14. Force Majeure
EPI shall not be liable for failure or delay in providing Services if such failure or delay is due to riots, insurrection, fires, flood, storm, acts of God, war, government action, labor, labor conditions, earthquakes, terrorism or any other cause beyond the reasonable control of EPI.
15. Limitation of Liability
In no event shall either party be liable or obligated in any manner for any loss of use, interruption of business or any indirect, special, punitive, incidental or consequential damages to the other party of any kind arising out of, or in any way connected with the Service, including but not limited to the use or inability to use the Service, or for any Content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the Content, even if the party from which damages are being sought have been previously advised of the possibility of such damages. In no event shall either party’s total liability exceed the amounts actually paid and/or due from this Agreement in the twelve (12) months preceding the event giving rise to such claim.
16. Waiver; Severability
The failure of either party hereto to enforce at any time any of the provisions or terms of this Agreement, or any rights in respect thereof, or the exercise of or failure to exercise by either party any rights or any of its elections herein provided, shall in no way be considered to be a waiver of such provisions, terms, rights or elections or in any way to affect the validity of this Agreement. If any of the provisions of this Agreement, or portion thereof, are held invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement. In such event, the parties shall negotiate, in good faith, a substitute, enforceable provision which most nearly affects their original intent in entering into this Agreement.
17. Modification of Terms
EPI reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Neither party may assign this Agreement, whether by operation of law or otherwise, in whole or in part without the other party’s prior written consent (which will not be unreasonably withheld); provided, however, that either party may assign its rights and obligations under this Agreement to a person or entity into which such party has merged or which has otherwise succeeded to all or substantially all of the party’s business and assets to which this Agreement pertains (by merger, reorganization, sale of assets or otherwise) and which has assumed in writing or by operation of law such party’s obligations under this Agreement. The rights and obligations of the parties to this Agreement will bind and inure to the benefit of their successors and permitted assigns. Unless otherwise provided above, any attempted assignment is void.
19. Governing Law and Jurisdiction
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Diego, CA. It shall be binding upon both parties including their officers, employees, directors and agents. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.
EPI may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record, or by written communication sent by first class mail to your address on record. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail) or 12 hours after sending (if sent by email). You may give notice to EPI at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to EPI at the following address: EpiAnalytics, Inc., 7417 Magellan, Suite 100, Carlsbad, CA 92011. Notice will be deemed to be given when received by EPI.
21. Entire Agreement
This agreement constitutes the entire agreement between the Parties and supersedes any and all other agreements and understandings between you and EPI, whether oral or written, with respect to the subject matter herein.