VIGILANT™ Fleetwide Management Software Agreement
Updated: January 26, 2022
This VIGILANT™ Fleetwide Management Software Agreement (this “Agreement”) provides terms that govern your access to and use of the Software (as defined below). This Agreement is between you and Eagle Eye Power Solutions, LLC, a Wisconsin limited liability company with its principal offices at 6306 Eastwood Court, Mequon, WI 53092 (“Eagle Eye” or “our” or “we” or “us”). This Agreement takes effect when [you click the “I Accept” button as part of downloading the Software or check box presented with the Software] or, if earlier, when you first use the Software (the “Effective Date”). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have the legal authority to bind that entity (the “User”).
Limited License Grant
As of the Effective Date, Eagle Eye grants you a non-exclusive, non-transferable and non-assignable right to use, pursuant to this Agreement, the VIGILANT™ fleet monitoring software program downloaded from www.eepowersolutions.com (the “Software”), along with its related documentation, to monitor VIGILANT™ battery monitoring systems pursuant to this Agreement.
Right to Use the Software
The User agrees to use the Software only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). Unless the User has been specifically permitted to do so in a separate agreement with us, the User shall not duplicate, alter, translate, sublicense, sell, lease, rent, modify or adapt the Software, or otherwise disclose it to any third parties. The User may not (and may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless the User has been specifically told to do so by us in writing.
Software Modifications
The Software may automatically download and install updates from time to time from Eagle Eye. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. The User agrees to receive such updates (and permits Eagle Eye to deliver them) as part of the use of the Software.
Eagle Eye attempts to provide the best possible use of the Software to users. The User acknowledges and agrees that the form and nature of the Software that Eagle Eye provides may change from time to time without prior notice. The User acknowledges and agrees that Eagle Eye is entitled to disable access to the User’s account, and if so, the User may be prevented from accessing the Software, the account details or any files or other content that is contained in the User’s account.
Software Results
Any and all results, data and information provided by the Software are Eagle Eye proprietary information, are given for information purposes only, and are not binding on Eagle Eye.
Disclaimer of Warranties
To the maximum extent permitted by applicable law, Eagle Eye provides the Software and support services (if any) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL EAGLE EYE BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES OR LOSS OF PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, BENEFITS, INTERRUPTION IN USE OR AVAILABILITY OF DATA) ARISING FROM OR IN CONNECTION WITH THE USE, PERFORMANCE OR NON-PERFORMANCE OR INABILITY TO USE THE SOFTWARE.
Eagle Eye shall have no liability for any claim based on or resulting from (i) the User’s use of the Software in violation of this Agreement; (ii) changes in the Software by the User and/or (iii) combination, operation or use of the Software with third party programs or equipment, data not agreed to by Eagle Eye.
EAGLE EYE ASSUMES NO LIABILITY FOR ANY DAMAGE CAUSED BY ANY VIRUSES, WORMS, TROJANS AND/OR SIMILAR MALICIOUS SOFTWARE OR DAMAGES TO USER’S COMPUTER EQUIPMENT(S) THAT MIGHT OCCUR DURING OR AS A RESULT OF USING OR INSTALLING THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT USER’S OWN DISCRETION AND RISK.
Proprietary Rights
Any and all trademark, trade name, copyright, patents and other intellectual property rights in the Software, and in the documentation, are and remain the absolute and exclusive property of Eagle Eye. User agrees that it shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Software.
Indemnification
Upon written request of Eagle Eye, User will indemnify, defend and holder Eagle Eye harmless for any third party claim, suit, action or proceeding (“Claim”) brought against Eagle Eye or its members, managing member, employees, or agents to the extent caused by (a) the resale or making available of Software by User to a third party; (b) a material breach by User of any of its obligations under this Agreement; (c) non-compliance by User with any laws; (d) the infringement or misappropriation of any intellectual property rights or other proprietary rights.
Termination
We may at any time terminate the User’s right to use the Software and in particular if:
- the User breaches any provision of this Agreement (or acts in manner which clearly shows that the User does not intend to, or is unable to comply with the provisions of this Agreement); or
- we are required to do so by law (for example, where the provision of the Software is, or becomes, unlawful); or
- the Software is, in our opinion, no longer commercially viable.
In such event, the User must destroy all copies of the Software and all of its associated documentation.
Entire Agreement
This Agreement is the entire agreement concerning the Software between the parties and supersede any prior agreements and arrangements, whether written or oral.
Law and Jurisdiction
This Agreement and any disputes hereunder shall be governed by and construed in accordance with the internal laws of the State of Wisconsin (without regard to principles of conflict of laws). The parties hereby stipulate and agree that any proceeding arising under or in connection with this Agreement will be commenced and prosecuted in its entirety in either the United States District Court for the Eastern District of Wisconsin or the Wisconsin Circuit Court for Ozaukee County, Wisconsin. Each party hereby agrees and acknowledges that it will not assert in any such action or proceeding that such court lacks personal jurisdiction or is not a convenient forum, and that the rights of both such persons to contest the jurisdiction or venue thereof are hereby waived to the fullest extent permitted by law.
Updates
From time to time, we will update this Agreement to track current practices and make changes that may be required by law. When updated, we will post them on our website, and note when the updated terms take effect with the “Updated: [month, day and year]” notation at the beginning of the terms.
