This End User License Agreement (“Agreement”) is a binding legal agreement between SEAM Group, a brand of ABB Inc (“SEAM Group” or “ABB”) and You and, if applicable, the company or other legal entity You represent (collectively, “You”), regarding the software that You are installing, downloading, accessing or using (including any future updates, upgrades, or versions of the software) (collectively, the “Software”), and any associated SEAM Group Services and accompanying documentation, information, manuals or other related materials provided by SEAM Group as part of, or in connection with, the Software. This Agreement is effective as of the date You download and/or use the Software.
By installing, downloading, accessing, or using the Software, or otherwise accepting this Agreement, or ‘clicking’ accept (if appliable), You acknowledge that You have read, understood, and agree to be bound by the terms of this Agreement. If You do not understand or agree, You must not install, download, access or use the Software.
- DEFINITIONS
The following definitions apply to terms used in this Agreement:
- “Agreement” means this End User License Agreement (“EULA”).
- “Customer(s)” means a company or its representative with a current agreement with SEAM Group for the purchase of a license to use the Software.
- “Customer Site(s)” means the physical locations where services are performed or otherwise rendered.
- “Data” means: (i) Content; and (ii) Submitted Data.
- “Documentation” for a particular Software means SEAM Group’s published user guide and feature listings for that Software.
- “Effective Date” is the date on which You accept the terms and conditions of this Agreement by clicking “Agree” or otherwise accepting this Agreement through download or use of the Software.
- “Force Majeure” has the meaning set forth in Section 17 (Force Majeure).
- “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
- “High Risk System” means a device or system that requires extra safety functionalities such as fail-safe or fault-tolerant performance features to maintain a safe state where it is reasonably foreseeable that a failure of the device or system could lead directly to death, personal injury, or catastrophic property damage, such as a Lockout/Tagout system/procedure. A device or system with a fail-safe feature in the event of failure may revert to a safe condition rather than break down, may include a secondary system that comes into operation to prevent a malfunction, or may operate as a backup in the event of a malfunction. A device or system with a fault-tolerant feature in the event of failure may continue its intended operation, possibly at a reduced level, rather than failing completely. Without limitation, High Risk Systems may be required in critical infrastructure; industrial plants; manufacturing facilities; direct life support devices; aircraft, train, boat, or vehicle navigation or communication systems; air traffic control; weapons systems; nuclear facilities; power plants; medical systems and facilities; and transportation facilities.
- “Intellectual Property Rights” means copyrights, software, domain names, trademarks, service marks, designs, and applications thereof, data, and documentation thereof, trade secrets, and know-how (including but not limited to development information, specifications, plans, proposals, and technical data).
- “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
- “Order Form” means the form Customers complete and submit to SEAM Group upon purchase of the Software.
- “PdM Industry” means the Predictive Maintenance Industry.
- “Person(s)” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
- “Privacy Policy” means SEAM Group’s privacy policy which has been reviewed, accepted, made part of this agreement, and is located at: https://www.seamgroup.com/privacy-policy/.
- “SEAM Group” means SEAM Group, a brand of ABB Inc.
- “SEAM Group Systems” means the information technology infrastructure used by or on behalf of SEAM Group in offering the Software, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operating directly by SEAM Group or through the use of third-party services.
- “Services” means the specific proprietary SaaS (Software as a Service) product(s) of SEAM Group specified in Customer’s Order Form, including any related SEAM Group Documentation, and excluding any third-party products.
- “Software” means SEAM Group’s ViewPoint Web and Mobile and ViewPoint API software and includes 1) machine-readable instructions and data; 2) components, files, and modules; 3) any accompanying audio-visual content; 4) accompanying activation keys, if any; and 5) associated Documentation. Except where the context otherwise requires, Software includes any Update of the Software that SEAM Group releases.
- “Transport Layer Security” is a widely adopted security protocol designed to facilitate privacy and data security for communications over the Internet.
- “Update” means Software that is an upgrade, bug fix, patch, or other release of Software licensed hereunder that SEAM Group makes generally available free of additional charge to Customers.
- “You” or “Your” means the individual, other legal entity, or other business, governmental or not-for-profit organization (but excluding any parent, subsidiary, or other affiliate of any of the foregoing) that is the original end user purchaser of the license to the Software from SEAM Group.
- “Your Data” means the substantive data input by You or obtained by SEAM Group.
- LICENSE GRANT AND LIMITATIONS
SEAM Group owns the Software – ViewPoint Web and Mobile and ViewPoint API (hereinafter the “Software”) – and SEAM Group, pursuant to the terms below, agrees to license the use of the Software to You.
- License Grant. You agree that the Software is licensed, not sold, to You. All intellectual property rights in the Software are owned by SEAM Group and are protected by law, including but not limited to United States copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. You are only granted certain limited rights to install and use the Software, and SEAM Group reserves all other rights in the Software not granted to You in writing herein. As long as You meet all applicable payment obligations and comply with this Agreement and any other agreements that apply to Your use of the Software, SEAM Group grants You a limited, nonexclusive, nontransferable, revocable, proprietary license to install, access and use the Software only for the period agreed upon, as set forth in writing and in Your agreements with SEAM Group, and only for the purposes described by SEAM Group for the Software.
- Limitations. You shall not, and shall not permit any other Person to, access or use the Software except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, You shall not, except as this Agreement expressly permits:
- Copy, modify, or create derivative works or improvements of the Software;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- Reverse-engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
- Bypass or breach any security device or protection used by the Software or access or use the Software other than by the use of Your authorized means;
- Input, upload, transmit, or otherwise provide to or through the Software, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
- Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Software or SEAM Group Systems;
- Remove, delete, alter, or obscure any documentation, warranties, or disclaimers, or and copyright, trademark, patent, or other intellectual property or proprietary rights from the Software;
- Access or use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable Law;
- Access or use the Software for purposes of competitive analysis of the Software or for the development, provision, or use of a competing software service or product or any other purpose that is to SEAM Group’s detriment or commercial disadvantage; or
- Otherwise access or use the Software beyond the scope of the authorization granted under this Agreement.
- Indemnification. You agree to defend and indemnify SEAM Group against any claim arising out of a violation of the limitations under this Section.
- AVAILABILITY
- Generally. Subject to and conditioned on Your compliance with the terms and conditions of this Agreement, SEAM Group shall use commercially reasonable efforts to provide You access to the Software, except for:
- Scheduled Downtime in accordance with section 3(b);
- Service downtime or degradation due to a Force Majeure Event;
- Any other circumstances beyond SEAM Group’s reasonable control, including Your misuse of the Software or use of the Software other than in compliance with the express terms of this Agreement; and
- Any suspension or termination of Your access to or use of the Software as permitted by this Agreement.
- Suspension or Termination of Service. SEAM Group may, directly or indirectly, suspend, terminate, or otherwise deny Your or any other Person’s access to or use of all or any part of the Software, without incurring any resulting obligation or liability, if: (i) SEAM Group receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires SEAM Group to do so; or (ii) SEAM Group believes, in its good faith and reasonable discretion, that: (x) You have failed to comply with any material term of this Agreement or accessed or used the Software beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (y) You are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the use of the Software; or (z) this Agreement expires or is terminated. This subsection does not limit any of SEAM Group’s other rights or remedies, whether at law, in equity or under this Agreement.
- CONFIDENTIALITY
SEAM Group shall provide You with secure credentials to the website on which SEAM Group, or a designated agent, shall maintain the Data and Reports. The website shall be accessed through a Transport Layer Security to ensure Your confidentiality and informational security. SEAM Group shall protect the Data with the same degree of security that it protects its own confidential information. Correspondingly, You agree that aspects of the Software and associated Documentation are the confidential property of SEAM Group. As such, You shall exercise all reasonable commercial efforts to maintain the Software and associated Documentation in confidence, which, at a minimum includes restricting access to the Software to Your employees and contractors having a need to use the Software for Your internal business purposes.
- YOUR DATA
You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, exportability, and appropriateness of Your Data. All Data obtained by SEAM Group from You, including all Data relating to the Services thereto, shall be and remain the property of You; provided, however, that SEAM Group may use such Data, without identifying You, for the purpose of maintaining statistical and other analyses. SEAM Group shall treat Your information and Your Data in accordance with its Privacy Policy located at https://www.seamgroup.com/privacy-policy/.
- DATA USE
SEAM Group may collect, compile, or process a variety of statistical and other information about You and end users of the Software and associated hardware including:
- End user names, email addresses, phone numbers, IEMIs (International Mobile Equipment Identities);
- Location information; and
- Information provided to use through cloud services and dashboards associated with the Software.
Subject to applicable contractual and legal restrictions, SEAM Group uses the information described above (sometimes in combination with other information SEAM Group obtains) for the following purposes:
- To analyze and improve the Software;
- To monitor adoption rates of Updates to the Software;
- To provide maintenance and technical support;
- To provide Updates;
- To enforce the legal terms that govern the Software;
- To comply with applicable laws and to protect rights and property; and
- For other purposes requested or authorized by You.
SEAM Group conducts the above activities on the basis of its legitimate interests in operating its business and protecting its customers. Where appropriate, these activities are also conducted on the basis of consent.
- INTELLECTUAL PROPERTY OWNERSHIP, COPYRIGHT PROTECTION
The Software and Services are protected by copyright laws, international copyright, patents, trademarks, trade secrets and other intellectual rights. SEAM Group and SEAM Group’s licensors, respectively, retain exclusive ownership of all rights, title, and interest in and to all intellectual property in the Software and Services. Nothing in this Agreement constitutes a sale or other transfer or conveyance of any right, title, or interest in the Software or Services. You obtain no rights whatsoever in the Software or Services but are hereby granted the limited license described herein, provided You are current in all payment obligations hereunder, to use the Software.
- DISCLAIMERS
- AS IS. YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK, EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SEAM GROUP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. SEAM GROUP DOES NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION.
- COMPLIANCE. SEAM GROUP DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO, OSHA REGULATIONS AND/OR ANY OTHER STATE, FEDERAL, INTERNATIONAL, OR LOCAL SAFETY RULES, REGULATIONS, OR REQUIREMENTS.
- Third Party Issues. SEAM Group is not responsible or liable for any late delivery or delay or failure of performance of the Software caused in whole or in part by (i) You failing to act or delaying acting according to instructions from SEAM Group regarding the Software; (ii) failure of You to timely implement any modifications, upgrades, updates, replacements, enhancements, or corrections made available to You by SEAM Group related to the Software; and (iii) You using any third party software, hardware, or system (or any upgrades or updates to any of the foregoing) in conjunction with the Services where such combination is not authorized in writing by SEAM Group.
- LIMITATION OF LIABILITY AND INDEMNITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF SEAM GROUP FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR SEAM GROUP’S SERVICES, AS PROVIDED ON YOUR ORDER FORM DURING THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, SEAM GROUP IS NOT LIABLE FOR ANY OF THE FOLLOWING: (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (ii) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET SEAM GROUP’S SYSTEM REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF SEAM GROUP AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND ITS USE.
FURTHER, YOU AGREE TO INDEMNIFY AND HOLD SEAM GROUP HARMLESS FROM ANY AND ALL CLAIMS, LIABILITY AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF YOUR USE OF THE SOFTWARE OR BREACH OF THIS AGREEMENT (COLLECTIVELY REFERRED TO AS “CLAIMS”). SEAM GROUP RESERVES THE RIGHT, IN ITS SOLE DISCRETION AND AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY CLAIMS. YOU AGREE TO REASONABLY COOPERATE AS REQUESTED BY SEAM GROUP IN THE DEFENSE OF ANY CLAIMS.
SEAM Group shall only be obligated to provide to You Services data obtained from Your Site(s) and Reports based thereon, as requested by You and accepted by SEAM Group. SEAM Group shall not be liable or responsible for selecting the Sites from which Services data is gathered or determining what, if any, course of action is to be taken as a result of the Data or Reports compiled and delivered to or made available to You. In the event of any defective or non-conforming Data gathering, Data, or reporting by SEAM Group, then Your exclusive remedy shall be, at SEAM Group’s sole option, to either re-record the Data and provide a new Report to You or to refund to You all payments received by SEAM Group for such non-conforming work. Under no circumstances shall SEAM Group be liable to You for any advice, judgment, recommendation, finding, decision, or conduct based upon, resulting from or otherwise arising or potentially arising out of the Services or any other action taken or omitted pursuant to this Agreement.
- LIMITATION OF ACTION
In no event may any claim by You arising from or relating to this Agreement or any Services or Software hereunder be brought against SEAM Group more than one (1) year after the date the claim arose.
- AUDIT
SEAM Group has the right to inspect and audit You and require You to provide written assurance satisfactory to SEAM Group to confirm compliance with this Agreement.
- CHANGES
SEAM Group reserves the right to change this Agreement at any time, and the changes will be effective when posted on SEAM Group’s website or when SEAM Group notifies You by other means. SEAM Group may also change or discontinue the Software, in whole or in part. Your continued use of the Software indicates Your agreement to the changes.
- TERMINATION
SEAM Group may immediately, in its sole discretion and without notice, terminate Your use of the Software if You fail to comply with this Agreement. Upon termination You must immediately stop using the Software and any outstanding payments will become due. Any termination of this Agreement will not affect SEAM Group’s rights to any payments due to it.
- EXPORT RESTRICTIONS
You acknowledge and agree that the Software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that You will comply with these laws and regulations and will not export or re-export the Software in violation of these laws and regulations, directly or indirectly.
- CUSTOMER REPRESENTATIONS
You represent and state to SEAM Group that You own or otherwise have or will have the necessary rights and consents in and relating to Your Data and content so that You do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.
- VIEWPOINT SERVICE LEVEL AGREEMENT
SEAM Group provides 99.9% uptime of the ViewPoint application. In the event of maintenance requiring downtime, external communication will be sent to You.
Support requests are to be escalated to SEAM Group via email at , or by phone at (888) 845-4405. These support requests should include a description of the problem, and initial severity of “Low”, “Medium”, or “High”.
Response times to support requests are based on severity. A response to “Low” priority requests takes place within 5 business days, “Medium” severity requests within 2 business days, and “High” severity requests within 24 hours.
- FORCE MAJEURE
In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake, or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export, or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
- HIGH RISK SYSTEM TERMS
The Software may fail and is not designed, developed, tested, or intended to be reliable in the context of High Risk Systems. SEAM Group has no responsibility for, and You will indemnify and hold harmless SEAM Group from all claims, suits, demands, and proceedings alleging, claiming, seeking, or asserting any liability, loss, obligation, risk, cost, damage, award, penalty, settlement, judgment, fine, or expense (including attorneys’ fees) arising from or in connection with Your use of the Software on or in a High Risk System, including those that could have been prevented by deployment of fail-safe or fault-tolerant features to the high risk system, or are based on a claim, allegation, or assertion that the functioning of the High Risk System depends or depended on the functioning of the Software, or that the failure of the Software caused a High Risk System to fail.
- PRIVACY POLICY
You acknowledge and agree that You have read the SEAM Group Privacy Policy located at https://www.seamgroup.com/privacy-policy/ (or otherwise made available to You through SEAM Group Services) and consent to the handling and processing of Your Data as described in the SEAM Group Privacy Policy.
- MISCELLANEOUS
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between this Agreement and any other document(s), the terms of this Agreement shall control.
- Assignment. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without SEAM Group’s prior written consent. No delegation or other transfer will relieve You of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Agreement is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- 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 upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Severability. If any 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. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions completed hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Arbitration. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio.
- Dispute Resolution. You agree that any dispute which arises between SEAM Group and You hereunder shall be resolved by arbitration in Cleveland, Ohio according to the Rules of the American Arbitration Association (the “Rules”) and the award of the Arbitrator shall be final and binding upon the parties. The Arbitrator or, if the Rules provide for a panel of arbitrators, the chairman shall be a lawyer with experience in handling technology disputes, and any panel members, whether or not attorneys, shall have training and background in technology issues.
- Equitable Relief. You acknowledge and agree that a breach or threatened breach by You of any of Your obligations would cause SEAM Group irreparable harm for which monetary damages would not be an adequate remedy and You agree that, in the event of such breach or threatened breach, SEAM Group will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Notification. Except as otherwise provided elsewhere in this Agreement, any report or notice under this Agreement shall be given in a writing, if to SEAM Group, by mail to 21111 Chagrin Blvd, #100, Beachwood, OH 44122, or e-mail to contact@seamgroup.com, provided that the notice identifies You by name, address, and email address.
- Waiver. The failure of SEAM Group to require Your performance of any provision of this Agreement shall not affect SEAM Group’s full right to require such performance at any time thereafter; nor shall its waiver of a breach of any provision hereof be taken to be a waiver of the provision itself.
- Contact Information. Should You have any questions concerning this Agreement, or if You desire to contact SEAM Group for any other reason, please contact SEAM Group by mail at: 21111 Chagrin Blvd, #100, Beachwood, OH 44112, by telephone at: (866) 772-6770, or by e-mail at: contact@seamgroup.com.
-END OF EULA-
Comments
0 comments
Please sign in to leave a comment.