End User License Agreement
This End User License Agreement (the “Agreement”) is a legally binding contract between you (“Licensee”), and Predictive Coach, Inc. (“PC”) concerning your use of the software-as-a-service product (“Service”) provided by PC. By accessing or using the Service, you acknowledge that you have read, understood and agree to be bound by this Agreement
Licensee must accept the terms of this Agreement before accessing or otherwise using the Software (as defined below) or any of the services that may be provided by PC under this Agreement (“Services”). By clicking “Accept”, accessing or using the Software or Services, you affirm your acceptance of this Agreement.
If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever in the Software.
1. LICENSE GRANT AND RESTRICTIONS: Subject to the terms and conditions of this Agreement, including the payment of any applicable subscription fees, PC grants Licensee a limited, non-exclusive, non-transferable license to electronically access and use the Software solely for the purpose of accessing and using the Service as described at www.predictivecoach.com.
“Software” means the Predictive Coach software program and includes any programs, mobile applications, tools, internet-based services, components and any “updates” (for example, Software maintenance, service information, help content, bug fixes, or maintenance releases, etc.) of the Software that PC provides or makes available to Licensee. This Agreement and license grant shall apply to such updates unless additional terms are provided with such updates that expressly supersede the terms and conditions of this Agreement. Certain Software may be accompanied by, and will be subject to, additional terms, and may be subject to third party licenses with respect to open source software included with the Software.
Licensee is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other PC systems, programs or data that are not made available for public use; (ii) copy, reproduce, modify, translate, adapt, create derivative works based upon, republish, upload, post, transmit, resell or distribute in any way the material found at www.predictivecoach.com or that is a part of the Predictive Coach solution; (iii) allow anyone other than Licensee to access the Software and Services; (iv) rent, sell, lease, lend, redistribute or sublicense the Software or permit any third party to benefit from the use or functionality of the Software or Services via a rental, lease, timesharing, service bureau, or other arrangement; (v) use the Software on any device that Licensee does not own or control; (vi) distribute or assign, sublicense or otherwise transfer any of the rights granted to Licensee under this Agreement; (vii) copy (except as expressly permitted by this license and the Service Agreement), modify, translate, adapt, or create derivative works of the Software; (viii) circumvent any technical or security limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decode, decompile, disassemble, derive the source code or otherwise reverse engineer the Software except as otherwise permitted by applicable law or by licenses with respect to open source software included with the Software; (ix) perform or attempt to perform any actions that would interfere with the proper working of the Software or Services, prevent access to or the use of the Software or Services by PC’s other licensees or customers, or impose an unreasonable or disproportionately large load on PC’s infrastructure; or otherwise use the Software except as expressly allowed under this Section 1.
In using the Software and Services, Licensee agrees to obey all applicable federal, state and local laws, regulations and guidance.
2. Identifying Information: The Software is licensed not sold, and PC reserves all rights not expressly granted to Licensee in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. PC owns the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant Licensee any rights to trademarks or service marks of PC or service.
3. REGISTRATION DATA: Licensee must register to use the Software and Service. Licensee must provide true, accurate, current and complete information as prompted by the sign-up process (the “Implementation Data”) and maintain and immediately update the Implementation Data to keep it accurate, current and complete. If Licensee provides any Registration Data that is inaccurate, not current or incomplete, or PC has reasonable grounds to suspect is inaccurate, not current or incomplete, PC may, in its sole discretion, suspend or terminate Licensee’s account and refuse any and all current or future access to and use of the Software or Services (or any portion thereof).
4. LICENSEE ACCESS INFORMATION: “Licensee Access Information” means Licensee’s access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by Licensee to access the Software, and Services. Licensee is solely responsible for: (i) maintaining the confidentiality and security of Licensee Access Information. Licensee will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Licensee Access Information. PC assumes that any Communications it receives through use of the Licensee Access Information were sent or authorized by Licensee. Licensee agrees to immediately notify PC, in writing via email, if Licensee becomes aware of any loss, theft or unauthorized use of any Licensee Access Information. PC reserves the right to deny Licensee access to the Software or Services (or any part thereof) if PC reasonably believes that any loss, theft or unauthorized use of Licensee Access Information has occurred. Licensee must inform PC of, and hereby grants to PC permission to use, Licensee Access Information to enable PC to provide the Services to Licensee, including updating and maintaining Event Data, addressing errors or service interruptions, and to enhance the types of data and services PC may provide to Licensee in the future.
5. EVENT DATA: “Event Data” means information, files or data that is collected and stored in using the Software or Services. Licensee shall prevent unauthorized access to or use of the Event Data. Licensee authorizes PC to collect and use the Event Data, and to combine Licensee’s Event Data with that of others in a way that does not identify Licensee or any individual personally, to improve services and to compare use practices with others with similar use habits.
6. CHANGES AND TERMINATION: PC shall have the right, in its sole discretion and with reasonable notice posted on www.predictivecoach.com or sent to Licensee’s email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently. PC reserves the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws, regulations, guidance or its policies or agreements. Licensee may reject changes by discontinuing use of the Software and Services to which such changes relate, or if an update to the Software is provided, by rejecting the downloading of such update. PC reserves the right to terminate this Agreement and the license to the Software by providing thirty (30) days written notice at any time if Licensee rejects such update. Licensee’s continued use of the Software or Services or downloading of an update will constitute Licensee’s agreement to such changes. PC may, from time to time, perform maintenance upon the Software or Services resulting in interrupted service, delays or errors in the Software or Services. PC will attempt to provide prior notice of scheduled maintenance, but cannot guarantee that such notice will be provided.
8. FEEDBACK: PC may provide Licensee with a mechanism to provide feedback, suggestions and ideas, if Licensee chooses, about its online products and services (“Feedback”). Licensee agrees that PC may, in its sole discretion, use the Feedback Licensee provides to PC in any way, including in future modifications of the Software, multimedia works and/or advertising and promotional materials relating thereto. Licensee hereby grants PC a perpetual, worldwide, fully transferable, irrevocable, royalty-free, fully paid up license to use, modify, create derivative works from, distribute, perform, reproduce and display the Feedback or part thereof. Any and all support questions should be directed to PC at support@predictivecoach.com.
Licensee agrees that PC may collect and use technical data and related information, including but not limited to technical information about Licensee’s device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Licensee (if any) related to the Software and Services. PC may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or services, or to provide services or products to Licensee.
10. DISCLAIMER OF WARRANTIES: LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND/OR THE SERVICES IS AT LICENSEE’S SOLE RISK. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PC, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”)DISCLAIM ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. PC DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE OR SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY THEFT, THREAT OF HACKERS, OTHER PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR REPRESENTATIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY. IN THAT EVENT, ANY IMPLIED WARRANTIES OR REPRESENTATIONS ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE OR SERVICES, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT PC AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICES. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. PC EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT LICENSEE’S USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS, REGULATIONS OR GUIDANCE.
11. LIMITATION OF LIABILITY AND DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF PC AND ITS SUPPLIERS FOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE OR SERVICES, AS APPLICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PC AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR OTHER ECONOMIC LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND EVEN IF PC OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PC AND LICENSEE. PC WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE OR THE SERVICES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO LICENSEE. LICENSEE AND ITS USERS SHALL BE RESPONSIBLE FOR ALL LIABILITIES ARISING FROM ITS USE OF THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY TICKETS, INFRACTIONS, PENALTIES OR ACCIDENTS ARISING FROM ANY USE OF VEHICLES BY LICENSEE OR ITS USERS.
12. U.S. GOVERNMENT: The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), and all U.S. Government End Users acquire the PC Software with only those rights set forth herein
13. EXPORT RESTRICTIONS: The Software is subject to applicable export control legislation in the United States and Canada, and Licensee agrees not to use or export the Software in contravention of applicable export control legislation in the United States and Canada.
14. TERMINATION: This Agreement may be terminated or suspended by a party at any time. Upon termination of this Agreement, Licensee must immediately cease using the Software and Services. Licensee shall remain liable to pay all amounts under this Agreement that are due or accrue due by the effective date of termination of this Agreement. Effective date of termination will be at the end of the billing cycle, (i.e., on the last day of the month in which cancellation occurred). Sections 6-16 of this Agreement shall survive any termination or expiration of this Agreement.
15. INDEMNIFICATION: Licensee shall defend, indemnify and hold PC and its affiliates harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees) arising from: (i) any violation of this Agreement, or of any state, provincial or federal laws, regulations or guidance, by Licensee or Licensee’s users; (ii) any use of the Software or Services, including but not limited to any death, injury or property damage resulting from any such use; (iii) any tickets, infractions, penalties or accidents arising from any use of vehicles by Licensee or users ; or (iv) any infringement or misappropriation of a third party’s copyrights, patents, trade secrets or other intellectual property rights, or any violation of any proprietary right or invasion of any privacy rights or laws, regulations or guidance.
16. GENERAL: This Agreement and documents referenced in this Agreement constitute the entire understanding of the parties concerning the subject matter of this Agreement and supersede all prior written or oral understandings. No delay or failure by PC to exercise any right under this Agreement, and no partial or single exercise of that right, nor acceptance of a partial payment, or the waiver of condemnation of any breach or default, shall constitute a waiver of that or any other right, unless otherwise expressly provided. The suppliers, agents, employees, distributors, and dealers of PC are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on PC. Any waiver of the terms herein by PC must be in writing and signed by an authorized officer of PC and expressly reference the applicable provisions of this Agreement.
If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
This Agreement will be governed by Texas law as applied to agreements entered into without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods is disclaimed by the parties and does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in the State of Texas or federal court for the District of Texas.
Headings are included for convenience only, and shall not be considered in interpreting this Agreement.
As used in this Agreement, the word “including” means “including but not limited to.”
Notices under this Agreement may be sent via email to PC to support@predictivecoach.com and to the Licensee at the email address provided by Licensee when downloading the Software.
