End User License Agreement (EULA)
This End User License Agreement (the "Agreement"), is entered into by and between Phantom Technical Services, Inc. ("Licensor") and the participant identified on the Order ("Licensee" or “you” on behalf of Licensee, and together with Licensor, the "Parties", and each, a "Party").
BY SIGNING THE ORDER ASSOCIATED WITH THIS AGREEMENT, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE TO WHICH THIS AGREEMENT RELATES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A 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 INSTALL, COPY, OR OTHERWISE USE THE APPLICATION AND REMOVE IT FROM YOUR EQUIPMENT.
ANY INDIVIDUAL USING THE SERVICE ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND, BY ACCEPTING THESE TERMS, DOES SO BIND SUCH ENTITY.
1. Definitions. Capitalized terms shall have the meanings set forth or referred to in this Section, or in the Section in which they first appear in the Agreement.
"Confidential Information" means the Software, Documentation, and any other proprietary, non-public information that you receive in connection with your use of the Software.
"Documentation" means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
"Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases, (d) trade secrets, know and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.
"Permitted Use" means use of the Software by the Licensee in the ordinary course of its internal business operations within the Territory.
“Process Build Location” shall mean each individual physical location where the Software interacts with the process for the purpose of data exchange relating to traceability, overall equipment effectiveness (OEE), downtime analytics, etc. By way of example, a Process Build Location may be a single station within an Assembly Cell or Batching station where manufacturing work is performed, or inventory is maintained.
"Representatives" means a Party's and its successors' and permitted assigns' affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
"Software" means the Manufacturing Execution System (MES) identified in the Order. Any future changes, updates, or enhancements to the Software and any maintenance or support of the Software are by separate agreement only at the discretion of Licensor or its authorized resellers, service providers, or other vendors. Nothing in this Agreement shall create any obligation on Licensor to provide such changes, updates, enhances, maintenance, or support.
"Term" has the meaning set forth in Section 10.1.
"Territory" means the United States.
2. License Grant. Subject to, and conditioned upon Licensee's compliance with the terms and conditions of this Agreement and payment of all amounts set forth in the Order, Licensor hereby grants to Licensee a non-exclusive, non-transferable, limited license to use the Software and Documentation solely for a Permitted Use in connection with the Process Build Location(s) set forth in the Order.
3. Scope of Use.
3.1 Access. Licensee shall be permitted to install, use and run one (1) copy of the Software on each of the Process Build Locations set forth in the Order.
3.2 Permitted Use. Licensee shall use the Software solely for its Permitted Use, except as otherwise expressly provided in this Agreement. Licensor may deny any individual access to the Software on written notice to Licensee if Licensor, in its sole discretion, believes that person's use of the Software would violate any provision of this Agreement, regardless of whether Licensee designated that person as an Authorized User.
4. Use Restrictions. Licensee shall not, and shall not permit any Representatives or third parties to, in any manner:
4.1 modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Software, except as expressly authorized by Licensor for purpose of installation or integration with a Process Build Location;
4.2 reverse engineer, disassemble, decompile, decode or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part, except as and only to the extent this restriction is prohibited by law;
4.3 remove, disable, or otherwise create or implement any workaround to, any security features contained in the Software;
4.4 remove, delete or alter any trademarks, copyright notices or other Intellectual Property Rights notices of Licensor or its licensors, if any, from the Software;
4.5 copy the Software, in whole or in part, except that Licensee may make one copy of the Software solely for testing, disaster recovery or archival purposes. Any copy of the Software made by Licensee: (a) shall remain the exclusive property of Licensor; (b) be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.
4.6 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software available to any third party for any reason;
4.7 use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including: (a) power generation systems; (b) aircraft navigation or communication systems, air traffic control systems or any other transport management systems; (c) safety-critical applications, including medical or life-support systems, vehicle operation applications and any police, fire or other safety response systems; and (d) military or aerospace applications, weapons systems or environments;
4.8 use the Software in violation of any federal, state or local law, regulation or rule;
4.9 use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Licensor's commercial disadvantage; or
4.10 use the Software in any other manner or for any other purpose or application not expressly permitted by this Agreement.
5. Export Regulation. The Software, Documentation and any related technical data, and products utilizing the Software, Documentation or such technical data (collectively, "Controlled Technology") may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, and shall not permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to a jurisdiction or country to which the export, re-export or release of any Controlled Technology is prohibited by applicable federal law, regulation or rule. Licensee 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 or re-exporting any Controlled Technology. Licensee shall provide prior written notice of the need to comply with such laws and regulations to any person, firm or entity that it has reason to believe is obtaining any such Controlled Technology from Licensee with the intent to export.
6. Ownership. Licensee acknowledges and agrees that the Software is being licensed, not sold, to Licensee by Licensor. Licensee further acknowledges and agrees that it shall not acquire any ownership interest in the Software under this Agreement, Licensor is the sole owner of all Intellectual Property Rights to the Software, and Documentation, including all derivative works thereto, and Licensor reserves and shall retain all right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software. Licensee shall promptly notify Licensor if Licensee becomes aware of any possible third-party infringement of Licensor's Intellectual Property Rights arising out of or relating to the Software and fully cooperate with Licensor in any legal action taken by Licensor against third parties to enforce its Intellectual Property Rights. Licensee shall safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
8. Audit. Licensor or its Representatives may, in Licensor's sole discretion, audit Licensee's use of the Software under this Agreement at any time during the Term and for one (1) year following the expiration or termination of this Agreement. Licensee shall fully cooperate with Licensor's audit and provide reasonable access to records, equipment, information and personnel requested by Licensor. Licensor may conduct audits only during Licensee's normal business hours and in a manner that does not unreasonably interfere with Licensee's business operations. If the audit determines that Licensee's usage of the Software exceeded the usage permitted by this Agreement Licensee shall pay to Licensor all fees due for such excess usage of the Software, plus any reasonable costs incurred by Licensor in conducting the audit, within seven (7) days of the date of written notification of the audit results.
9.1 Licensee Obligations. Licensee acknowledges and agrees that by its use of the Software and Documentation, it may gain access to or become familiar with the Licensor’s Confidential Information. Except as set forth in Section 9.2, Licensee shall: (a) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as Licensee would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement, or otherwise in any manner to Licensor’s detriment; (c) not disclose any such Confidential Information to any person or entity, except to the receiving Licensee’s Representatives who (1) need to know the Confidential Information to assist the Licensee, or act on its behalf, in relation to the Purpose or to exercise its rights under the Agreement; (2) are informed by the Licensee of the confidential nature of the Confidential Information; and (3) are subject to confidentiality duties or obligations to the Licensee that are no less restrictive than the terms and conditions of this Agreement; and (d) be responsible for any breach of this Agreement caused by any of its Representatives.
9.2 Required Disclosure. The Licensee may disclose the Licensor’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a "Legal Order"), provided that the Licensee shall first make commercially reasonable efforts to provide the Licensor with: (a) prompt written notice of such requirement so that the Licensor may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Licensor 's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
10. Term; Termination.
10.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated pursuant to any of its express provisions.
10.2 Termination. This Agreement may be terminated prior to the expiration of the Term on written notice: (a) by Licensor, if Licensee fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Licensee's receipt of written notice of nonpayment; (b) by Licensor, if Licensee commits a material breach of any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Licensee within thirty (30) days after Licensee's receipt of written notice of such breach; (c) by Licensee, if Licensor commits a material breach of any warranty set forth in Section 11.2 and such breach is not cured by Licensor in accordance with Section 11.3; and (d) by either Party, effective immediately, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
10.3 Effect of Termination. The termination of this Agreement, for any reason, shall not release either Party from any liability to the other Party, including any payment obligation, that has already accrued hereunder. On the termination of this Agreement, for any reason, Licensee shall: (a) immediately discontinue use of the Software; (b) within ten (10) days, at Licensor's option and at Licensee's expense, return to Licensor or destroy all copies of the Software, Documentation and all materials containing Licensor's Confidential Information. This requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials; and (c) within fifteen (15) days, certify in writing to Licensor that all such copies and materials have been returned or destroyed, and that Licensee's use of the Software has been discontinued.
10.4 Survival. The provisions of Section 4 through Section 17 shall survive the expiration or earlier termination of this Agreement for any reason.
11. Representations and Warranties.
11.1 Mutual Representations. Each Party represents to the other Party that it: (a) is an entity duly organized and validly existing under the laws of its jurisdiction of organization; (b) is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; and (c) has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.
11.2 Limited Warranty; Disclaimer. Subject to the limitations set forth in below, Licensor warrants to Licensee that Licensor has full power and right to license the Software and perform all other terms of this Agreement. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 11.2 OF THIS AGREEMENT, THE LICENSED SOFTWARE IS PROVIDED "AS IS" AND LICENSOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR, IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION, MEDIA AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO THE LICENSEE UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LICENSOR AND PHANTOM PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
11.3 Remedial Efforts. If Licensor breaches any of the warranties set forth in Section 11.2, Licensor may, at its sole option and expense, terminate this Agreement and, provided that Licensee fully complies with of its post-termination obligations as set forth in Section 10.3, promptly provide to Licensee a pro rata refund of the license fees previously paid by Licensee for the remaining Term of this Agreement following the date of such termination.
11.4 Sole Remedy. If Licensor does not cure a warranty breach or terminate this Agreement as provided in Section 11.3 within a reasonable period of time after Licensor's receipt of written notice of such breach, Licensee shall have the right to terminate this Agreement as provided in Section 10.2(c). Provided that Licensee fully complies with of its post-termination obligations as set forth in Section 10.3, Licensor shall promptly provide to Licensee a pro rata refund of the license fees previously paid by Licensee for the remaining Term of this Agreement following the date of such termination. THIS SECTION 11.4 SETS FORTH THE LICENSEE'S SOLE REMEDY AND THE LICENSOR'S ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY SET FORTH IN THIS AGREEMENT.
11.5 Licensee Obligations; Control of Defense. If Licensee receives notice or otherwise becomes aware of the commencement or threatened commencement of any Action relating to the Software, Licensee shall promptly provide Licensor with written notice of such Action, who will then provide notice to Licensor. On receipt of such notice, Licensor shall be entitled to, at its sole option, assume the control of the defense, appeal or settlement of such Action. Licensee shall fully cooperate with Licensor in connection therewith. Licensee shall be entitled at any time to employ separate counsel to represent Licensee, but if the defense, appeal or settlement of such Action has been assumed by Licensor, any separate counsel employed by Licensee shall be at Licensee's sole expense. Licensee shall not settle any Action without Licensor's prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
11.6 Sole Remedy. THIS SECTION 11.6 SETS FORTH THE LICENSOR'S SOLE LIABILITY AND ENTIRE OBLIGATION AND THE LICENSEE'S EXCLUSIVE REMEDY FOR ANY ACTION ARISING IN THE TERRITORY THAT IS BROUGHT AGAINST THE LICENSEE.
12. Equitable Remedies. Licensee acknowledges that a breach or threatened breach of this Agreement by Licensee or its Representatives may cause irreparable harm to Licensor for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Licensee or its Representatives, Licensor shall, in addition to any and all other rights and remedies that may be available at law (which Licensor does not waive by the exercise of any rights hereunder), be entitled to seek a temporary restraining order, injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction, and Licensee hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
13. Limitation of Liability.
13.1 NO CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL THE LICENSOR OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 MAXIMUM LIABILITY. IN NO EVENT WILL THE LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO THE LICENSOR PURSUANT TO THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Michigan. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted in the federal courts of the United States or the courts of the State of Michigan in each case located in the city of Shoreham and County of Berrien, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Licensee shall not withhold payment of any fees owing under this Agreement by reason of any set-off of any claim or dispute with Licensor, whether relating to the quality or performance of the Software or otherwise.
15. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on Order (or to such other address that may be designated by a Party from time to time in accordance with this Section 16).
17.1 Subcontracting. In connection with the obligations set forth in this Agreement, the Parties hereby agree that Licensor may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement and may license or otherwise provision such software or other materials as deemed necessary by Licensor.
17.2 Force Majeure. Excepting only Licensee's payment obligations under this Agreement, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond such Party's reasonable control.
17.3 Further Assurances. Each Party shall, on the reasonable request and at the sole cost and expense of the other Party, take, execute, acknowledge and deliver all such further acts, documents and instruments necessary to give full effect to this Agreement.
17.4 Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
17.5 Publicity. Neither Party shall use the other Party's trademarks, service marks, trade names, logos, symbols or brand names, or otherwise issue or release any announcement, statement, press release or other publicity or marketing materials relating to the existence or subject matter of this Agreement, or the relationship between the Parties, in each case, without the prior written consent of the other Party.
17.6 Entire Agreement. This Agreement, together with the Order, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. In no event shall the provisions of any purchase order or any associated documentation used by Licensee, constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of Licensor to object to any purchase order or associated documentation.
17.7 Assignment. Licensee shall not assign any of its rights hereunder without the prior written consent of Licensor. Any purported assignment in violation of this Section 17.7 shall be null and void. No assignment shall relieve Licensee of any of its obligations hereunder.
17.8 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
17.9 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, 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.
17.10 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17.11 Attorneys' Fees. In the event that either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.