COVID-19 Application End User License Agreement

This Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and AgilePoint, Inc. (“Company”). This Agreement governs your use of the application used in conjunction with AgilePoint NXTM (including all related documentation, the “Application”). The Application is licensed, not sold, to you.

BY CLICKING THE “I AGREE” BUTTON OR DOWNLOADING, INSTALLING AND/OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND HAVE CAPACITY TO ENTER INTO THIS BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR SYSTEM AND/OR DEVICE.

  1. Notices.

(a) AgilePoint recommends that you receive approval from your organization’s Human Resources, Legal and IT department managers to ensure that the Application, or Application as modified, complies with internal policies and applicable law and is technically feasible before you use it.

 

(b) Notice to Government Agencies That Use AgilePoint’s Application:  AgilePoint offers its Application to agencies and authorized users, but not to their employees in their individual capacities. This App is offered for use free of charge to government agencies for a limited or extended period of time. No implied or actual future obligation is established by implementation of an App by the government agency. AgilePoint expressly waives any claims for payment, now or in the future, from the agency in connection with usage of the application. Government customers are solely responsible to confirm with the agency’s ethics office or its authorized representative that acceptance and usage of the application is permissible.

(c) Notice to Employers That Use AgilePoint’s Application: Employers have sole discretion regarding whether to use the Application. Employers may and should modify any language in the templates provided in the Application to meet, and remain solely responsible for complying with, their legal obligations under applicable law, including data protection laws. By using the Application, employers agree that (i) they are responsible for the Application’s compliance with any regulation or law, as well as any language suggested in the application, (ii) distribution of the Application is not a representation by AgilePoint about the legality of use in jurisdictions the Employer uses the Application, and (iii) distribution of the Application does not constitute legal advice by AgilePoint.

  1. License Grant.

Subject to the terms of this Agreement, Company grants you a limited and non-exclusive license to:

(a)  download, install, and use the Application for your personal, non-commercial or commercial use on systems and/or other devices owned or otherwise controlled by you (“Device”) strictly in accordance with the Application’s documentation;

(b)  access, download, and use on such Device the Content and Services (as defined in Section 7) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 7; and

(c) modify the Application, except source code of the Application.

  1. License Restrictions. Licensee shall not:
  • modify source code of the Application, whether or not patentable;
  • reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
  • remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
  • remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
  1. Reservation of Rights.

You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

  1. Collection and Use of Your Information.

You may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

  1. Collection and Use of Others’ Information.

If you collect information about any person, you agree to do so in compliance with applicable law, including all data privacy laws.

  1. Content and Services.

The Application may provide you with access to Company’s website(s) located at or accessed through AgilePoint.com, nxone.com or other similar website associated with the Company (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on or through the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by Website’s Terms of Use and Privacy Policy located at https://agilepoint.com/terms-and-conditions/ and https://agilepoint.com/privacy-statement, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.

  1. Updates.

Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. All Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

  1. Term and Termination.

(a)  The term of Agreement commences when you download or install the Application or acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 9.

(b)  You may terminate this Agreement by deleting the Application and all copies thereof from your Device(s).

(c)  This Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d)  Upon termination:

(i)  all rights granted to you under this Agreement will also terminate; and

(ii)  you must cease all use of the Application and delete all copies of the Application from your Device and account.

(e)  Termination will not limit any of Company’s rights or remedies at law or in equity.

  1. Disclaimer of Warranties.

THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, 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.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

(a)  PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b)  DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  1. Indemnification.

You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application and/or an Application modified by you or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

  1. Export Regulation.

The Application may be subject to United States of America (“US”) export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall 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 Application available outside the US.

  1. US Government Rights.

The Application is commercial computer software, as such term is defined in the US Code of Federal Regulations 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

  1. Severability.

If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

  1. Governing Law.

This Agreement is governed by and construed in accordance with the internal laws of the State of California and the United States of America without giving effect to any choice or conflict of law provision or rule.

  1. Arbitration.

Any controversy, dispute or claim arising out of or relating to this contract, or the breach thereof, shall be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial or other Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any legal suit, action, arbitration or other proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the County of Santa Clara, California, US. All claims shall be brought on your own behalf and not on behalf of anyone else, e.g. a class. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such arbitration or courts.

  1. Limitation of Time to File Claims.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  1. Entire Agreement.

This Agreement, with our software license agreement or software as a service agreement; Website Terms of Use; and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

  1. Waiver.

No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.