Effective Date: 1/1/2023
1. Introduction
Please read the terms and conditions of this End User License Agreement (“Agreement”) carefully:
This Agreement is an agreement between you on behalf of yourself and your employer (“You” or “Your”) and DRO Consulting LLC d.b.a. The Oak Group (“Company”) for the SiteRise application (the “Software”). The terms and conditions contained in this Agreement apply to Your use of the Software.
BY BROWSING, ACCESSING, OR OTHERWISE USING THIS SOFTWARE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT IF THE LICENSEE IS AN ENTITY, THIS AGREEMENT IS ENTERED INTO BY AN EMPLOYEE OR AGENT WITH ALL NECESSARY AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT AND THAT YOU HAVE THE LEGAL RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CLICK THE “ACCEPT” BUTTON, AND YOU CANNOT DOWNLOAD, INSTALL, COPY, ACCESS OR OTHERWISE USE THE SOFTWARE.
2. Grant of License
Subject to the conditions described herein, Company hereby grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty free license to download and use the Software. The Software is owned or licensed by Company, and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. There are no implied licenses granted under this Agreement. Company reserves all rights that are not expressly granted.
3. License and Use Limitations
Prohibitions. Except as expressly permitted in this Agreement, You shall NOT:
a. Sell, resell, distribute, lease, rent, trade, transfer, assign, make available to third-parties in any manner, encumber, or exploit in any manner the Software;
b. Modify, copy, alter, repair, decompile, reverse compile, decode, adapt, dissemble, make derivative works of, or reverse engineer or otherwise gain access to the Software or its source code;
c. Publish, display or allow access or linking to the Software;
d. Use, copy, distribute or modify the Software in any “service bureau” or “timesharing” business;
e. Modify or use the Software with any open source software in a manner that would require the redistribution of any part of the Software;
f. Combine or integrate the Software with any software, technology, services, or materials not authorized by Company in writing;
g. Design or permit software to disable, override, or otherwise interfere with the Software;
h. Replicate or attempt to replace or replicate the Software;
i. Copy any ideas, features, functions or graphics of the Software;
j. Remove, alter, move, or obscure any legal or other proprietary rights notices contained in or on the Software or materials You receive under this Agreement;
k. Have Your use of the Software alone or in combination with other software: (i) infringe on any third party’s intellectual property rights; (ii) violate any applicable law, statute, ordinance, contract, regulation (“Applicable Law”); or (iii) contain any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data (“Malware”); or
l. Use the Software for planning, construction, maintenance, or operation, directly or indirectly, of nuclear facilities, flight navigation, aircraft control, air traffic control and ground support equipment, missile technology, and facilities for weapons of mass destruction, unless this use is explicitly approved by Company in writing in each and every case. For the purposes of this Agreement the term ”nuclear facilities” shall mean any nuclear facility, including, but not limited to, nuclear power plants, nuclear fuel manufacturing plants, uranium enrichment plants, uranium conversion plants, spent nuclear fuel conversion plants, spent nuclear fuel storage plants, and research reactors. The term “facilities for weapons of mass destruction” shall mean any facility for design, manufacturing, storage, transportation, controlling, dispatching, and destruction of weapons of mass destruction, including, but not limited to, nuclear, chemical, and biological weapons.
4. Ownership
As between the parties, all right, title and interest, including all Intellectual Property Rights, in and to the Software or other Company intellectual property (collectively and for the purposes of this Section referred to as “Company Content”) are and remain exclusively with Company or its licensors. You shall have no rights in and to the Company Content, other than those expressly granted pursuant to this Agreement. Use of the Company Content other than specifically permitted in this Agreement, is expressly prohibited.
If You or any of Your employees, contractors, or agents sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting, requesting, or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to Company on Your behalf, and on behalf of Your employees, contractors, and agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to You or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
This Agreement does not entitle You to any support for the Software. You acknowledge that Company may update or modify the Software from time to time and at Company‘s sole discretion (in each instance, an “Update”). Updates may adversely affect the functionality of the Software.
Company may monitor Your use of the Software, and You will cooperate reasonably with such monitoring and take any remedial actions required to fully comply with this Agreement.
5. Representations and Warranties
You represent and warrant the following:
a. (i) You have the right and power to enter into this Agreement, (ii) the execution and performance of this Agreement will not conflict with or violate any provision of any law, contract or agreement applicable to You; and (iii) this Agreement, when executed and delivered, will constitute a valid and binding obligation and will be enforceable against You in accordance with its terms.
b. Your use of the Software will not: (i) infringe on any third party’s intellectual property rights; (ii) violate any Applicable Law; (iii) contain any Malware; (iv) create liability for Company in whole or in part; or (v) be used to compare Company’s products or services with any comparable or similar, compatible products or services provided by any other person or entity.
c. You understand that Company is not liable for any inaccuracies, errors or defects in the Software or any consequences that result from Your use of the Software.
6. Disclaimers and Limitations on Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (a) ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, INABILITY TO USE, ACCURACY OF, RELIABILITY OF, OR OMISSIONS OF THE SOFTWARE; OR (b) ANY DAMAGES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN 60 DAYS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
COMPANY PROVIDES YOU THE SOFTWARE “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY AND WITHOUT MAINTENANCE OR ANY SUPPORT SERVICES. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND COMPANY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES AND SOFTWARE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SOFTWARE WILL BE SECURE, UNINTERRUPTED AVAILABLE, ERROR FREE OR FREE OF HARMFUL COMPONENTS, THAT THE REPORTS OR DATA PROVIDED ARE ACCURATE, THAT THE SOFTWARE WILL MEET YOUR OR ANY THIRD PARTY’S REQUIREMENT, THAT YOU WILL ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
7. Indemnification
You will indemnify, defend and hold harmless Company, its affiliates and their respective officers, directors, trustees, agents and employees (collectively, the “Company Indemnitees”) from and against any and all losses, liabilities, claims, obligations, demands, awards, settlements, penalties, suits, damages, costs, fees and expenses, including reasonable, out-of-pocket attorneys’ fees and expenses, and costs of experts and investigation (collectively, “Losses”), by reason of, arising out of or in connection with: (i) Your use of the Software or other information received from Company, where Your use is in violation of this Agreement or Applicable Law, including but not limited to any intellectual property infringement of any third-party rights and including, in each instance, claims of personal injury or property damage; and (ii) any breach by You of this Agreement. You will have sole control of the defense and settlement of any claim for Losses (a “Claim”), at Your own cost, but You may not settle any Claim without Company’s prior written consent.
8. Export Controls
The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You will not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
9. Term and Termination
a. Term. The term of this Agreement shall run from the date You acknowledge Your acceptance of this Agreement by clicking the “accept” button through the date the Agreement is terimated.
b. Termination. Company may terminate the Agreement for its convenience at any time and with no notice to You. In addition, this Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement.
c. Effect of Termination. Upon the termination of this Agreement, all licenses and rights granted to You hereunder will terminate. Upon such termination, You must stop using the Software in accordance with the terms of this Agreement and destroy and permanently erase from all devices, including cloud storage data base and server systems You control directly or indirectly, all copies of the Software, except for a reasonable number of copies made in the course of Your ordinary backup procedures. Termination will not limit either Party’s rights or remedies at law or in equity.
d. Survival. The following Sections will survive termination of the Agreement: 3, 4, 6, 7, 9, 10 and 11.
10. Governing Law and Jurisdiction
This Agreement and performance hereunder shall be governed by, and construed in accordance with the substantive laws of the State of Delaware without giving any effect to any conflict of law provisions. Any dispute, action, proceedings, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be instituted exclusively in the state and federal courts of Delaware. The parties irrevocably and unconditionally submit to the exclusive jurisdiction and venue of said courts and waive any defense of forum non conveniens and any objections as to the laying of venue therein. Any cause of action You may have arising out of or related to Your use of the Software must be commenced within one (1) year after the cause of action arises. Company reserves the right to seek all remedies available at law and equity for violations of this Agreement, as well as the right to restrict access to the Software or any portion of it.
11. General Provisions
a. Assignment. Company may at any time assign, transfer, mortgage, charge or deal in any other manner with all or any of its rights under the Agreement. You shall not, without the prior written consent of Company, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement. Any assignment or attempted assignment by You in violation of the terms of this Section shall be null, void and of no legal effect. Any permitted assignment will not relieve You from any liability under this Agreement. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns, and any reference to a Party shall also be a reference to the permitted successors and assigns thereof.
b. Interpretation. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refer to the Sections of this Agreement; and (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Any exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth herein.
c. Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable and shall not affect any other provision or part-provision of the Agreement. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Section shall not affect the validity and enforceability of the rest of this Agreement. Upon a determination that any provision or part-provision is invalid, illegal or unenforceable, the determination shall apply only in the jurisdiction and to the circumstances as to which the determination applies.
d. Notices. All notices must be in writing. You will be deemed to have been duly given a notice (a) when delivered by hand (with written confirmation of receipt); (b) two (2) calendar days after being deposited for delivery with a nationally recognized overnight delivery service and addressed to any address You provided; or (c) to any email address You provided. All notices to Company shall be sent via email and via delivery with a nationally recognized overnight delivery service addressed to:
Address: 120 Timber Lane, Glencoe, IL 60022
Email: sales@siterise.app
Attention: Dillon Okner
e. Entire Agreement. This Agreement, together with all exhibits and any other documents incorporated herein and therein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
f. Amendment; Modification; Waiver. You acknowledge and agree that Company has the right, in its sole discretion, to modify this Agreement from time to time. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
g. Attorneys' Fees. In the event that any claim, suit, action, or proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its actual attorneys' fees and court costs as costs from the non-prevailing party.
h. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, including any right to enforce any provision of this Agreement, unless specified in the Agreement.
