INTERPRO SOLUTIONS, LLC
END USER LICENSE AGREEMENT
IMPORTANT: This end-user license agreement (“Agreement”) is a legal agreement between you as the individual, company, or other legal entity (referenced below as “You” or “Customer” or “End User”) and InterPro Solutions, LLC (“InterPro”). Customer and InterPro may also be referred to herein as a “Party” and together, the “Parties”. This Agreement governs your use of any products comprising the InterPro EZMax Suite software (“Software”), which includes EZMaxMobile, EZMaxRequest, EZMaxVendor, EZMaxPlanner and EZMaxInsight, as well as various add-ons including Basic Mapping, Enhanced Mapping, Premium Mapping and Cloud Services Bundle, as applicable. The Software may include associated media, printed materials, and electronic documentation. The Software is licensed, not sold, to you. BY INSTALLING, DOWNLOADING, OR OTHERWISE ACCESSING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (D) REPRESENT THAT IF ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION OR ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, ACCESS, OR USE THE SOFTWARE.
- Definitions and Interpretation. The following definitions and rules of interpretation apply in this Agreement:
“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).
“Authorized Users” means employees, agents, consultants, contractors, or vendors authorized by Customer to use the Software solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
“Authorized Third Parties” means any person(s) not a direct employee of the Customer but authorized in writing by both the Customer and InterPro to have access to the Software (as defined herein).
“Channel Partner” means a third-party business entity (e.g., Reseller) that InterPro has appointed as an approved partner to as applicable, distribute, re-sell and support the Software.
“Content” means all visual, written or audible communications, files, data documents, videos, recordings, or any other material displayed, posted, uploaded, stored, exchanged or transmitted on or through Your use of the Software or otherwise provided on a Site.
“Customer Data” means all data and/or content uploaded to the Software by Customer (including where applicable Authorized Users), and in all data derived from it.
“Documentation” means InterPro’s user manuals, handbooks and guides, relating to the Software provided by InterPro to Customer either electronically or in hard copy form.
“OSS Licenses” means the respective open-source licenses that the Third-Party Materials are subject to.
“Third-Party Materials” means open-source software programs that are made available by third parties under their respective OSS Licenses.
“Submission Data” means certain technical data and related usage information that may be collected by certain Software or submitted by You. For clarity Submission data excludes Content.
- Access and Use
2.1. License and Access. Subject to timely payment of fees and compliance with all other terms and conditions of this Agreement and the Documentation, InterPro grants Customer, during the Term, a non-exclusive, revocable, non-transferable right to access and use (and permit Authorized Users to access and use) the Software and applicable Documentation within the United States and Canada solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and terms of this Agreement.
2.2. Access and Use Restrictions. Customer shall not (directly or indirectly): (a) copy or reproduce the Software or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the Software as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the Software, Documentation or InterPro Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the Software; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the Software, attempt to recreate the Software or use the Software for any competitive or benchmark purposes; (g) create, translate or otherwise prepare derivative works based upon the Software, Documentation or InterPro Intellectual Property; (h) interfere with or disrupt the integrity or performance of the Software; (i) attempt to gain unauthorized access to the Software or its related systems or networks, or perform unauthorized penetrating testing on the Software; (j) use the Software in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) store in or process with the Software any personally identifiable information (PII) including, but not limited to, personal health data, credit card data, personal financial data or other such sensitive regulated data not required by the Documentation, or any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Fees for the Software are based on use of the Software in a manner consistent with the Documentation. If Customer uses the Software in a manner that is outside or in violation of the Documentation, then Customer will cooperate with InterPro to address any applicable burden on the Software or pay an additional mutually agreed upon fee.
2.3. Limitations on Number of Users. Only Users and Authorized Third Parties may access the Software. The number of Users and Authorized Third Parties configured for access to the Software must not exceed the total number of subscriptions purchased.
2.4. Reservation of Rights. Customer acknowledges and agrees that the Software and Documentation is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. InterPro reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software or related intellectual property.
(a) Changes to this Agreement. InterPro reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this Agreement by clicking on the link located on https://interprosoft.com/end-user-license-agreement. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in agreement or compliance with this Agreement, you may terminate this Agreement in accordance with Section 11 and must immediately uninstall the Software. Your continued use of the Software following any revision to this Agreement constitutes your acceptance of such changes.
(b) Changes & Updates to the Software. InterPro may modify the Software for any reason or without any specific reason, at any time and at its sole discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Software (“Updates”). You agree that InterPro may stop to support previous versions of the Software upon availability of an updated version. You agree that InterPro has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your computer platform settings, when your computer platform is connected to the internet you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement.
2.5. Customer Responsibilities. Customer is responsible and liable for all uses of the Software and Documentation resulting from access to or use of the Software or Documentation provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Users and Authorized Third Parties, and any act or omission by a User or an Authorized Third Party that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall ensure all Users and Authorized Third Parties are aware of this Agreement’s provisions as applicable to such User’s and Authorized Third Parties’ use of the Services and shall cause Users and Authorized Third Parties to comply with such provisions.
2.6. Third Party Materials. The Software may include Third-Party Materials, use of which is subject to their respective OSS Licenses as indicated in the Documentation. InterPro warrants that the inclusion of such Third-Party Materials in the Software will not prevent Customer from exercising the license rights provided to Customer herein in respect of the Software or limit Customer’s ability to use the Software in accordance with the Documentation. Nothing herein shall derogate from mandatory rights Customer may have under any OSS Licenses, if any. Customer may obtain a copy of the source code for certain Third-Party Materials by following the instructions set forth in the Documentation.
2.7. Support. As part of its provision of the Software, InterPro shall make available technical support to Customer in accordance with InterPro’s then applicable support terms. Upon notification from InterPro, Customer shall promptly update any Agents on Customer systems that interact with the Software. Customer acknowledges and agrees that its failure to timely install such an update may result in disruptions to or failures of the Software, security risks or suspension of Customer’s access to the Software, without any liability on the part of InterPro to Customer.
2.8. Mobile Applications. With regard to Software that requires the use of mobile applications by an Authorized User, Customer shall ensure that all Authorized Users promptly download and install all applicable updates for the mobile applications Customer further acknowledges and agrees that the Software may not properly operate should any Authorized User fail to do so, and that InterPro is not liable for any damages caused by a failure to update mobile applications accordingly.
- Rights in Intellectual Property
3.1. Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to the Software, Documentation, improvements, derivative works, and InterPro Intellectual Property are hereby reserved by InterPro, its Affiliates or licensors. Nothing in this Agreement is intended transfer ownership of any Intellectual Property rights from one Party to the other.
3.2. Customer Data. Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant InterPro any rights in Customer Data beyond those expressly provided herein. Customer grants InterPro and its Affiliates the limited, non-exclusive, worldwide license to view and use the Customer Data solely for the purpose of providing the Software.
4.1. Confidential Information. The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other Party. The receiving Party may only use the disclosing Party’s Confidential Information to fulfill the purposes of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein.
4.2. Exceptions. Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
- Security and Processing of Personal Data
5.1. Customer Data Content. As between InterPro and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the Software; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with InterPro (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
5.2. Security of Customer Data. InterPro shall, to the extent applicable: (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. InterPro shall not materially diminish its security controls with respect to Customer Data during a particular Software term.
5.3 Privacy and Data Protection.
(a). Data Privacy. Customer represents and warrants that Customer has obtained all necessary rights to permit InterPro to collect and process data from Customer, including without limitation, data from endpoints, servers, cloud applications, and logs.
(b) Content. We will not monitor Content, except: (i) as needed to provide, support or improve the provision of the Software and Services, (ii) investigate potential or suspected fraud, (iii) where instructed or permitted by You, or (iv) as otherwise required by law or to exercise or protect Our legal rights.
(d). Consent. You are responsible for obtaining consent from Your Users to this collection, use, processing and transfer of Content and Submission Data.
6.1. Limited Software Warranty. During the applicable subscription Term, InterPro warrants that the Software will conform, in all material respects, with the Documentation for a period of one year from the date of installation (“Warranty Period”). In the event of a breach of the above warranty, InterPro shall correct or replace the Software free of additional charge. Any replacement Software shall be warranted for ninety (90) days or the remainder of the Warranty Period, whichever is longer. If InterPro is unable to correct or replace the nonconforming Software under this warranty within the Warranty Period or as otherwise agreed in writing between the Parties, then InterPro shall refund Customer that portion of the fees attributable to the balance of the subscription Term, on a pro-rata basis. InterPro does not warrant that the Software shall be error free or meet all Customer requirements.
6.3. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, THE SOFTWARE IS PROVIDED “AS IS” AND INTERPRO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. INTERPRO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 ABOVE, INTERPRO MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
7.1. InterPro Indemnity. InterPro shall defend and indemnify Customer and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s U.S. or Canadian patent, copyright, trademark or trade secret caused by Customer’s use of the Software in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.2. Customer Indemnity. Customer shall defend and indemnify InterPro and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity) resulting from: (i) an alleged infringement or violation by the Customer Data of such third-party’s intellectual property, privacy rights, or other applicable law; (ii) Customer’s use of the Software in a manner not authorized by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided or authorized by InterPro; or (iv) modifications to the Software not made or authorized by InterPro, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.3. Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
7.4. Exclusions. The above InterPro obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the Software not in accordance with the Documentation and this Agreement; (b) Customer’s use of the Software in violation of applicable laws; (c) any modification, alteration or conversion of the Software not created or approved in writing by InterPro; (d) any combination or use of the Software with any computer, hardware, software, data or service not supported in accordance with the Documentation; (e) InterPro’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s use of a superseded or altered release of the Software if infringement would have been avoided by the use of a current unaltered release of the Software otherwise available to Customer.
7.5. Remedies. If the Software becomes, or InterPro reasonably determines that the Software is likely to become, subject to a claim of infringement for which InterPro must indemnify Customer as described above, InterPro may at its option and expense: (a) procure for Customer the right to continue to access and use the Software, (b) replace or modify the Software so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing Software, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the agreement and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected Software. This section states the sole liability of InterPro and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
- Limitation of Liability
8.1. Maximum Liability. Except for each Party’s indemnity obligations herein and Customer’s payment obligations, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to InterPro under this Agreement during the twelve (12) month period preceding the date of initial claim.
8.2. No Consequential Damages. Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.
- Export Control. The exportation of the Software and Documentation, and all related technology and information thereof are subject to U.S. laws and regulations pertaining to export controls and trade and economic sanctions. Customer shall not to export, re-export, access or grant access to the Software and all related technology, information, materials and any upgrades thereto to: (a) any prohibited persons; (b) any country to which such export, re-export or access from is restricted or prohibited per the foregoing applicable laws; or (c) otherwise in violation of any applicable export or import restrictions, laws or regulations. Customer also certifies that it is not a prohibited person nor owned, controlled by, or acting on behalf of a prohibited person.
- Professional Services. Customer may separately purchase from InterPro professional services in relation to the Software as may be generally available by InterPro to its customers, pursuant to InterPro’s then applicable professional services terms.
- Term and Termination
11.1. Term. The term of Agreement commences when you download and install the Software and will continue in effect for the subscription period purchased by Customer or until terminated by Customer or InterPro as set forth in this Section 11.
11.2. Termination. Customer may terminate this Agreement, if InterPro materially breaches this Agreement, and such breach remains uncured thirty (30) days after the Customer provides InterPro with written notice of such breach.
(a) InterPro may terminate this Agreement at any time without notice if it ceases to support the Software, which InterPro may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if Customer violates any of the terms and conditions of this Agreement.
(b) Upon termination:
(i) all rights granted to You under this Agreement will also terminate; and
(ii) You must cease all use of the Software and permanently delete all copies of the Software and Documentation from your Computer Systems, archives, and account.
(iii) termination will not limit any of InterPro’s rights or remedies at law or in equity.
11.3. Consequences of Termination. If this Agreement is terminated for any reason, Customer shall erase or destroy the original and all copies of the Software and Documentation and certify in writing that the original and all copies have been erased or destroyed.
12.1. Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for InterPro should be sent to the following addresses:
(i) for physical Notices:
Bill Fahey, CEO
105 Central St.
Stoneham, MA 02180
and (ii) for electronic Notices: email@example.com
12.2. Force Majeure. With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
12.3. Governing Law and Jurisdiction. This Agreement shall be governed for all purposes by and construed in accordance with the laws of the Commonwealth of Massachusetts (for customers located in North America) 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 Commonwealth of Massachusetts. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in the Commonwealth of Massachusetts in each case located in the city of Boston and County of Suffolk, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.4. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, including but not limited to the Documentation, constitutes the entire agreement of the Parties with respect to the Software and supersedes all prior and contemporaneous understandings and agreements, whether written and oral, with respect to the Software.
12.5. Assignment. InterPro may assign any of its rights or delegate any of its obligations hereunder, to any person without the prior consent of Customer. Customer may not assign any of its rights or delegate any of its obligations hereunder, without the prior written consent of InterPro. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.6. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Effective Date
The effective date of this End User License Agreement is March 24, 2022.