MS4 Web End User Licensing Agreement
IMPORTANT - READ CAREFULLY: THIS END USER LICENSING AGREEMENT (“EULA”) IS ISSUED TO USERS IN CONJUNCTION WITH THE CBI SYSTEMS, LTD. WEB APPLICATION SERVICES AND HOSTING AGREEMENT ("AGREEMENT") AND IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) (THE “USER”) AND CBI SYSTEMS, LTD. FOR THE CBI SYSTEMS, LTD. SERVICE AND SOFTWARE PRODUCT(S), WHICH INCLUDES(S) WEB APPLICATION COMPUTER SOFTWARE AND MAY INCLUDE "ONLINE" OR ELECTRONIC DOCUMENTATION, ASSOCIATED MEDIA, AND PRINTED MATERIALS ("APPLICATION"). BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR OTHERWISE USING THE APPLICATION OR ANY CBI SYSTEMS, LTD. ISSUED UPDATES, YOU AGREE TO THE TERMS OF THIS EULA. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THIS SERVICE. IF YOU DO NOT ACCEPT THIS AGREEMENT AND HAVE PROOF OF PAYMENT, YOU MAY NOTIFY CBI SYSTEMS, LTD. WITHIN THIRTY (30) DAYS FOR A REFUND OF SUCH LICENSE FEE.
a. “Documentation” means explanatory materials in printed, electronic or online form accompanying the Service.
b. "Service" means the online, Web-based automated database management service, including associated offline components and the graphical user interface of such and as may be provided to Users via online access, but limited to object code, created and provided by CBI and known as MS4 Web, including its upgrades and updates.
2. License Grant
a. Subject to the terms and conditions of this EULA, CBI hereby grants to you a personal, non-assignable, non-transferable, non-sublicenseable, nonexclusive license to use the Service during the term of this EULA solely for your internal business purposes in the United States.
b. The Service, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to CBI. CBI exclusively owns and reserves all right, title, and interest in and to the Service, including, without limitation, all intellectual property rights in and to the Service, except to the extent of the limited use license granted to you in this EULA. This EULA is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Service are transferred to you pursuant to this EULA. You acknowledge and agree that the Service and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Service, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, patches, modifications, enhancements, releases, and other updates in, of, or to the Service, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of CBI.
3. Proprietary Rights.
a. Customer acknowledges that in providing the Service, CBI utilizes (i) the CBI name, the CBI logo, the CBI domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "CBI Technology") and that the CBI Technology is covered by intellectual property rights owned or licensed by CBI (collectively, "CBI IP Rights"). CBI IP Rights shall include, but not be limited to, all licenses of any of the foregoing, all rights to obtain and rights to apply for patents and to register trademarks and copyrights; and all rights to sue and recover and retain damages and costs and attorneys’ fees for present and past infringement of any of the forgoing. Other than as expressly set forth in this Agreement, no license or other rights in or to the CBI Technology or CBI IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
b. Customer shall not (i) modify, copy or create derivative works based on the Service or CBI Technology; (ii) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service, other than on Customers' own intranets or otherwise for its own internal business purposes; or (iii) disassemble, reverse engineer, or decompile the Service or CBI Technology, or access it in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Customer shall promptly notify CBI of any knowledge of any breach, or potential breach, of the terms of this Agreement related to CBI IP Rights by any Party or any third party, and Customer shall take reasonable action to assist CBI in defense of any claims or assertion of rights.
c. As between CBI and Customer, all Customer Data is owned exclusively by Customer.
4. Copy and Use Terms.
a. The use of the Service depends on the Agreement and is effective for a limited period of time according to the Agreement.
b. You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Service; or create or recreate the source code for the Service; (ii) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Service or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Service and Documentation made by you; (iii) lease, lend or use the Service for purposes other than specified in the agreement; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Service except to the extent expressly permitted in this EULA; or use the Service to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt, tamper with, translate, or create derivative works of the Service or the Documentation; combine or merge any part of the Service or Documentation with or into any other software or documentation; or refer to or otherwise use the Service as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Service or to compete with CBI; (v) except with CBI’s prior written permission, publish any performance or benchmark tests or analysis relating to the Service; or (vi) attempt to do any of the foregoing.
5. Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User account. Customer shall:
a. have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data;
b. use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify CBI promptly of any such unauthorized use; and
c. comply with all applicable local, state, federal, and foreign laws in using the Service.
d. use the Service solely for compliance assistance activities associated with a National Pollutant Discharge Elimination System ("NPDES") or equivalent Municipal Storm Water Discharge Permit as contemplated by this Agreement
e. not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement;
f. not knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
g. interfere with or disrupt the integrity or performance of the Service or the data contained therein; or
h. attempt to gain unauthorized access to the Service or its related systems or networks.
6. Limited Warranty and Disclaimer.
a. Limited Warranty: CBI warrants that, during the Term (“Warranty Period”), the Service licensed hereunder will perform substantially in accordance with the terms specified in the Agreement (the “Limited Warranty”).
b. Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and CBI’s entire obligation and liability CBI will (i) repair the Service or (ii) if such repair or replacement would in CBI’s opinion be commercially unreasonable, upon CBI’s receipt of your written representation and promise that you have terminated use of the Service, refund the price paid by you for the applicable Service.
c. Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SERVICE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SERVICE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN CBI OR (iii) A MALFUNCTION IN THE SERVICE HAS BEEN CAUSED BY ANY EQUIPMENT OR SERVICE NOT SUPPLIED BY CBI.
d. Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SERVICE IS PROVIDED “AS IS” AND CBI MAKES NO REPRESENTATIONS OR WARRANTIES, AND CBI DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING, BUT NOT LIMITED TO, REGULATORY COMPLIANCE PURPOSES), TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, CBI MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SERVICE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SERVICE WILL BE FAIL-SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS. YOU AGREE TO COOPERATE FULLY WITH CBI IN CONNECTION WITH CBI'S PROVISION OF THE SERVICE. IT IS SOLELY YOUR RESPONSIBILITY TO PROVIDE ANY EQUIPMENT OR SOFTWARE THAT MAY BE NECESSARY FOR YOUR USE OF THE SERVICE. YOU USE THE SERVICE AT YOUR SOLE RISK AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT ITS HARDWARE AND SOFTWARE ARE COMPATIBLE WITH THE HARDWARE AND SOFTWARE USED BY CBI TO PROVIDE THE SERVICE, WHICH MAY BE CHANGED BY CBI FROM TIME TO TIME IN ITS SOLE DISCRETION. YOU ARE SOLELY RESPONSIBLE FOR BACKING-UP ALL USER CONTENT/DATA AND COMPLYING WITH YOUR RECORD RETENTION POLICIES OR OTHER REGULATIONS. WHILE CBI PROVIDES DATA BACK-UP SERVICE, CBI DOES NOT WARRANT THAT IT BACKS-UP ANY USER CONTENT/DATA AND YOU AGREE TO ACCEPT THE RISK OF LOSS OF ANY AND ALL USER CONTENT/DATA. TO THE EXTENT THAT THE PERFORMANCE OF ANY OF CBI’S OBLIGATIONS UNDER THIS AGREEMENT MAY DEPEND UPON YOUR PERFORMANCE OF YOUR OBLIGATIONS, CBI IS NOT RESPONSIBLE FOR ANY DELAYS DUE TO YOUR FAILURE TO TIMELY PERFORM YOUR OBLIGATIONS.
7. Limitation of Remedies and Damages.
a. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICE, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SERVICE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
b. No provision of this EULA shall exclude or limit in any way (i) the liability of either Party for death or personal injury caused by negligence or (ii) your liability for any breach of CBI’s intellectual property rights in the Service.