Terms and Conditions

License.  EEL grants to Licensee, a limited, non-exclusive, non-transferable and non-sublicensable, revocable, license to access and use, CUDA TMS on the Licensee Systems solely in accordance and strict compliance with the terms and conditions of this Agreement. Upon termination of the Agreement, Licensee shall immediately cease all access to and use of, and destroy all copies in its possession, custody, or control of, the CUDA Systems, and the Documentation.

CUDA TMS IS PROVIDED “AS IS”, ”with all faults” and defects, AND WITHOUT REPRESENTATIONS, WARRANTIES, or conditions OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND EEL HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, and conditions, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, AND/OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT ARISE OUT OF COURSE OF DEALING or PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, EEL PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE CUDA SYSTEMS WILL MEET THE LICENSEE'S REQUIREMENTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

RESTRICTIONS.  Except as expressly permitted in this Agreement, Licensee shall not, nor permit any third party to: copy, modify, alter, tamper with, correct, adapt, translate, enhance, or prepare derivatives or improvements of, CUDA TMS; rent, lease, lend, sell, license or sublicense, assign, distribute, publish, transfer, or make available, CUDA TMS (in whole or in part) to or for any third party; reverse engineer, disassemble, decompile, decode, or attempt to derive or gain access to the source code of, CUDA TMS; bypass/breach any security device or protection; remove, delete, alter, obscure, translate, combine, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or intellectual property or proprietary rights notices or other symbols, notices, marks, on or relating to any copy of CUDA TMS or the Documentation; combine or incorporate CUDA TMS (or any part) with or in any other software or program; use CUDA TMS in violation of applicable law; use CUDA TMS other than in strict conformance with the this Agreement and the Documentation; or use CUDA TMS or the Documentation for benchmarking or competitive analysis; or, access or use CUDA TMS or the Documentation in order to build any product or service competitive with, or that copies or emulates any feature or function of, CUDA TMS.

RESPONSIBILITY FOR USE.  Licensee is responsible and liable for all uses of CUDA TMS through access by or through Licensee Systems or Licensee’s login credentials, directly or indirectly, to the same extent as Licensee directly committed such conduct, whether such access or use is permitted by or in violation of this Agreement.

CUDA App.  In addition to CUDA TMS, EEL provides an adjunctive  mobile application (the “CUDA App”). Use of the CUDA App is subject to its terms and conditions of use to which Licensee would agree in connection with its download, installation, and use. Use of the CUDA App in conjunction with CUDA TMS is subject to payment of the applicable license fees as set forth on the attached Fee Schedule. Any breach of terms and conditions of the CUDA App is a breach of this Agreement.

proprietary rights.  Licensee acknowledges that CUDA TMS and the Documentation contains confidential information and trade secrets of EEL and its licensors. Licensee agrees that CUDA TMS and the Documentation are provided under license, and EEL owns and shall retain all right, title and interest in and to all EEL Proprietary Rights and, except for the license, Licensee shall not assert, impose, or maintain, and hereby disclaims, any right, title, and interest, encumbrances or other rights, in or to the EEL Proprietary Rights. EEL reserves and shall retain all rights, except as expressly granted to Licensee in this Agreement. Licensee shall use all reasonable efforts to safeguard CUDA TMS (including all copies).

AUDIT RIGHTS. EEL may, at any time during the term of this Agreement, upon reasonable written notice and during Licensee’s normal business hours, audit Licensee’s use of CUDA TMS at Licensee’s premises, as reasonably necessary to confirm that Licensee is using CUDA TMS in accordance with the terms and conditions of this Agreement. EEL may use a third-party organization reasonably acceptable to Licensee to assist EEL in conducting such an audit. Licensee will cooperate with EEL in such audit and will promptly make available to EEL all information and materials reasonably required by EEL to conduct such an audit.

API USAGE.  EEL may, but shall not be required to, provide or make available application program interfaces (APIs) and related API documentation to allow certain integrations of CUDA TMS with the products or services of Licensee or other third-parties. Access to or use of any EEL API shall be subject to the API usage terms and conditions then-in effect. EEL may, but shall have no obligation to, assist or provide services to you in connection with the integration of your systems and application, all of which shall be Licensee’s expense.

ACKNOWLEDGEMENT.  Licensee acknowledges and agrees that Licensee is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or processed by the CUDA Systems. Licensee will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of use of the CUDA Systems.

DATA AND SECURITY.  Licensee shall be solely responsible for, and will retain sole control over the operation, maintenance, and management of, and access to and use of the Licensee Systems, including: implementation and maintenance of sufficient physical, administrative, and technical controls; screening and security procedures with respect to the security and integrity of the Licensee Systems; and, any and all data backups and redundant data archives with respect to Licensee Data. As between the Parties, Licensee shall be solely responsible for, and shall have sole and exclusive liability in connection with: its (and its data suppliers’) collection, compiling, and/or maintenance of the Licensee Data including, obtaining and maintaining necessary rights and permissions; and complying with all all federal, state, provincial, local laws, statutes, rules, court orders, regulations and ordinances of the United States or any other nation or international treaty or Law (“Laws”) in the collection, compiling, maintenance, security, uploading, entry, and processing of the Licensee Data. Licensee represents and warrants to EEL that Licensee owns or otherwise has all necessary rights, title, and interest in and to the Licensee Data, including, any and all necessary consents and permissions; and, in Licensee’s collection, compiling, and/or maintenance of the Licensee Data, Licensee has complied with and during the Term will continue to comply with its privacy policy, the applicable contracts and agreements to which it is a party, and any and all Laws, including without limitation, all Laws regarding the privacy and/or security of personal or financial data.

Indemnity.  Licensee shall indemnify, defend, and hold harmless EEL, its affiliates, and their representatives, successors and assigns, from and against all claims, demands, suits, actions, losses, damages, liabilities, expenses, judgments, encumbrances, orders, fines, penalties and awards, including attorneys’ fees, expert witness fees, and court costs in connection with any third party claims arising out of or related to: Licensee’s collection, compiling, and/or maintenance of the Licensee Data, and Licensee’s use of the Licensee Data; and Licensee’s breach of this Agreement, or violation of Law.

FEEDBACK AND USAGE.  Licensee will provide reasonable feedback to EEL concerning the features and functionality of CUDA TMS. All such feedback will be the sole and exclusive property of EEL and may be used or incorporated by EEL into the CUDA Systems without royalties or consideration of any kind. Licensee hereby does, and agrees to, irrevocably transfers and assigns to EEL to EEL all of Licensee's right, title, and interest in and to all feedback including all intellectual property rights. Licensee will not earn or acquire any rights or licenses in CUDA TMS or in any EEL Intellectual Property Rights on account of this Agreement or Licensee's performance under this Agreement.

Limitations on Damages.  In no event will EEL or its affiliates, or any of its or their respective licensors or service providers, be liable to Licensee or any third party for any use, interruption, delay, or inability to use the CUDA Systems; lost revenues or profits; delays, interruption, or loss of services, business, or goodwill; loss or corruption of data; loss resulting from system or system service failure, malfunction, or shutdown; failure to accurately transfer, read, or transmit information; failure to update or provide correct information; system incompatibility or provision of incorrect compatibility information; or breaches in system security; or for any consequential, incidental, indirect, exemplary, special, or punitive damages, whether arising out of or in connection with this agreement, breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not EEL, knew, should have known, or was advised of the possibility of such damages.  the foregoing limitations shall apply even if the Licensee’s remedies under this Agreement fail of their essential purpose. EEL will have no liability as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any data as specifically required of Licensee by the terms of this Agreement.

CONFIDENTIAL INFORMATION.  Licensee will: (a) hold the Confidential Information in strict confidence, and exercise the same degree of care, but no less than reasonable care, as it uses to safeguard the confidentiality and avoid the unauthorized, use, disclosure, or dissemination of its own confidential and proprietary information; and (b) not, without the prior written consent of EEL: (i) use, or permit use of, the Confidential Information for anything other than in the evaluation of the CUDA TMS; or (ii) disclose, reveal, communicate, or permit access to, Confidential Information to any Person, directly or indirectly, by any means. However, Licensee Party may disclose Confidential Information to those of its representatives who have a bona fide need to know such information for Licensee’s evaluation of CUDA TMS, who are informed by Licensee of the confidential nature of the Confidential Information, and who have agreed to comply with the obligations of licensee under this Agreement. Licensee will cause its representatives to comply with the provisions of this Agreement. The acts or omissions of the representatives of Licensee shall be deemed the acts or omissions of Licensee and Licensee will be liable to EEL for any breach of this Agreement by the representatives of EEL. Licensee will immediately report any violation of this provision to EEL and shall employ all reasonable means to mitigate any damages or losses that EEL may incur as a result of any such violation.

DEFINITIONS.  As used in this Agreement:

“Confidential Information” means CUDA TMS, its features, feedback, related technical information identified as confidential or the results of any performance or functional evaluation or test of CUDA TMS and all other all information of EEL, or its affiliates, provided to or otherwise received, obtained, or accessed by Licensee, before or after the date of this Agreement – through whatever means or medium, whether in oral, graphic, or written form – that: is marked, designated, or referred to as confidential or proprietary, or with words of similar import; or Licensee knows, or reasonably should know, is treated as confidential, proprietary, or the like, by EEL.

“Licensee Data” means data of Licensee uploaded to, entered into, or otherwise processed by Licensee through CUDA TMS;

“Licensee Systems” means Licensee’s information technology infrastructure, including computers, software, hardware, databases, systems (including database management systems), and networks, whether operated directly by a party or through third party services.

“Documentation” means the technical documentation, manuals, and guides that describe the installation, functionality, and/or use of CUDA TMS.

“EEL Proprietary Rights” means all means all works of authorship, copyrights, inventions, patent rights and other rights of inventorship, rights in trademarks, service marks and other indicia of source, rights in trade secrets and proprietary information, rights in data and compilations of data, and all other intellectual property and proprietary rights of any type under applicable Law, as well as all rights in registrations and applications for registration of these rights and all licenses to these rights that are: owned, acquired or developed by (or by a third party on behalf of) EEL or its Affiliates, including without limitation, with respect to CUDA TMS and the Documentation, all software and data owned, licensed, leased or made available by EEL or its Affiliates, and all modifications, enhancements and derivative works in, of or to any of the foregoing, whether conceived, invented, created or developed by EEL, Licensee, or any third party, solely or jointly.

General.  Licensee may not assign this Agreement or any rights under this Agreement. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the state of Colorado, USA without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted exclusively in the federal courts of the United States of America or the courts of the state of Colorado, in each case, located in the City and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts for such purposes. EEL will not be responsible or liable to Licensee, or any other person, or deemed in default or breach of this Agreement by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee Systems, loss and destruction of property, or any other circumstances or causes beyond EEL’ reasonable control. This Agreement, and its terms, may not be waived, or modified, in whole or in part, except in a written document signed by a duly authorized representative of the Party to be bound. This Agreement binds and inures to the benefit of the Parties and their successors and permitted assigns. The Parties acknowledge and agree that a breach this Agreement by either Party may result in immediate, irreparable and continuing damage to the non-breaching Party for which there will be no adequate remedy at law; and agree that in the event of any such breach or violation or any threatened or intended breach or violation of this Agreement, the non-breaching Party, its successors and assigns, will be entitled to temporary, preliminary and permanent injunctive relief enjoining and restraining such breach or violation or such threatened or intended breach or violation and/or other equitable relief (without needing to post any bond or other security) in addition to such other and further relief as provided for at law and in equity. Except as expressly stated herein, all rights and remedies under this Agreement are cumulative and not exclusive. This Agreement, including all general terms pages, appendices, exhibits, and schedules attached hereto and any other document expressly incorporated herein by reference, constitutes the entire agreement between the Parties. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. Any and all prior agreements or representations respecting the subject matter of this Agreement, whether written or oral, expressed or implied, are terminated and of no further effect.