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Certrec Corporation
January 2022
End-User License Agreement (EULA) – SERVICES
IMPORTANT – PLEASE READ CAREFULLY. THIS DOCUMENT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE SERVICES. BY ACCESSING AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES. IF YOU ARE USING THE SERVICES IN PERFORMANCE OF SERVICES FOR AN ENTITY OR OTHERWISE REPESENT THAT ENTITY, YOU WARRANT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF, AND YOUR ACCEPTANCE OF THIS AGREEMENT AND USE OF THE SERVICES WILL NOT VIOLATE ANY AGREEMENT YOU HAVE WITH SUCH ENTITY. YOU UNDERSTAND YOU ARE BEING ISSUED A LICENSE FOR YOU AND YOUR COMPANY AND ARE NOT TO SHARE ACCESS TO THE SERVICES WITH ANYONE ELSE OUTSIDE OF YOUR COMPANY. YOU WILL BE ASKED TO PRESS THE ACCEPTANCE BUTTON AT THE END IN ORDER TO PROCEED TO SERVICES ACCESS.
1.1 General Agreement. This End User License Agreement (“EULA”) is a legal agreement between you (“Client”) and Crimson Engineered Solutions, LLC (dba Certrec Corporation, Inc) (“Certrec”). This EULA governs Your use of Certrec’s regulatory services via Certrec’s On-Demand Regulatory Expertise (CORE) support hours (“Services”). These Services are available via a specific contract. Certrec agrees to provide Client these Services to Client (personally and/or on behalf of your employer) (collectively “You” or “Your”) for your personal use only if Client accepts all the terms contained in this EULA. By using any portion of our Services, Client accepts and agrees to be bound by all of the terms and conditions of this EULA. IF CLIENT DOES NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT USE OUR SERVICES.
1.2 Provision of Service. In consideration of the fees paid by You, the Certrec agrees to provide Client access to the subject Services, for the license term, subject to the conditions outlined herein.
2.1 License Term. The term (“Term”) of this Agreement will commence on the Effective Date and will terminate on the anniversary of the Effective Date (one year). The quantity of Services (hours) can be used anytime during that one-year period. Remaining hours continue to be available if additional hours are purchased before the Term expires. The additional hours purchased are also valid for the standard Term (one-year from the date purchased).
2.3 License Limitations. The Services purchased (hours) may be used by anyone employed by the same company as the purchaser. Hours purchased are not transferable to any other company. The hours purchased may be used for any relevant Services provided by the Certrec, including research, document preparation, inspection/audit preparation support, mentoring, and more.
2.4 Variations in License Implementation. Client understands the purchased Services can be used for a wide range of employees of the Certrec, with different levels of skill and experience. As such, Client understands that at times, a multiplier may be applied (greater than 1 or less than 1) on the hours used depending on the specific individual selected to provide support to You. Client has the right to select the specific Certrec employee to perform the Services to Client under this agreement. A Certrec employee will be assigned to the Client to assist in selecting Certrec employees providing the Services and the rate associated with that employee.
3.1 Ownership and Confidentiality. Client acknowledges and agrees that the Services used in connection with this agreement may involve the transfer of proprietary and confidential information that is protected by applicable intellectual property and other laws. Client further acknowledges and agrees that the content or information presented to Client through during the course of these Services may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except where expressly provided otherwise by the Certrec, nothing in this Agreement shall be construed to confer any license to any manufacturer’s, author’s, developer’s, vendor’s, and service provider’s (“Third-Party Vendors”), intellectual property rights, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks displayed in any Certrec materials and any other Vendor service marks, logos and product service names are marks of Vendor (the “Vendor Marks”). Client agrees not to display or use any Vendor marks, or the marks of any Third-Party Vendor, in any manner without the Certrec’s express prior written permission. CLIENT IS EXPRESSLY PROHIBITED FROM PERMITTING ANY PERSON OR ENTITY ACCESS TO OR USE OF THE SERVICES OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT.
3.3 Infringement Acknowledgement. Client and Certrec acknowledge and agree that, in the event of a third-party claim that the Services or Your use of the Services infringes any third party’s intellectual property rights, Client (and not Certrec) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement against Client and Your Certrec. Client will, however, promptly notify Certrec in writing of such a claim.
4.0 Termination. Certrec may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to Client hereunder with or without prior notice. Furthermore, if the Client fails to comply with any terms and conditions of this License, including failure to pay associated fees, then this License and any rights afforded to Client hereunder shall terminate automatically, without any notice or other action by Certrec. Upon the termination of the License, Your access to the Services shall be ended by Certrec.
5.0 Disclaimers. Client acknowledges and agrees that the Services licensed herein are provided on an “as is” and “as available” basis, and that your use of or reliance upon the Services is at your sole risk and discretion. Certrec and its affiliates, partners, suppliers and licensors hereby disclaim any and all representations, warranties and guaranties regarding the Services whether express, implied or statutory, and including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Furthermore, Certrec and its affiliates, partners, suppliers and licensors make no warranty that (1) the Services will meet your requirements; (2) the Services will be uninterrupted, accurate, reliable, timely, secure or error-free; (3) the quality of any products, services, information or other material accessed or obtained by Client through the Services will be as represented or meet your expectations; or (4) any errors in the Services will be corrected. No advice or information, whether oral or written, obtained by Client from Certrec shall create any contract between Client and Certrec or any of its affiliates.
6.0 Limitation of Liability. Under no circumstances shall Certrec or its affiliates, partners, suppliers or licensors be liable for any indirect, incidental, consequential, special or exemplary damages arising out of or in connection with the Services, whether or not the damages were foreseeable and whether or not Certrec was advised of the possibility of such damages. Without limiting the generality of the foregoing, Certrec’s aggregate liability to Client (whether under contract, tort, statue or otherwise) shall not exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
7.1 Mutual Indemnification. Each party (the “Indemnifying Party”) agrees to defend at its expense and indemnify and hold harmless the other party and its affiliates, directors, officers, employees, agents, successors and assigns (each an “Indemnified Party”), in accordance with the procedures described in this Section, from and against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, “Losses”) arising from or in connection with any such third party claim for: (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party.
7.2 Infringement. Certrec will indemnify, defend, and hold harmless Client for Losses Client incur as a direct result of any unaffiliated third-party claim based on any claim that the Certrec infringes any U.S. copyright, trademark or trade secret, except to the extent resulting from your use of the Services. If any item for which Certrec has an indemnification obligation under this Section becomes, or in Certrec’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Certrec will, in addition to indemnifying Client as provided in this Section, promptly take the following actions, at no additional charge to You, in the listed order of priority: (a) secure the right to continue using the item or (b) replace or modify the item to make it non-infringing. If neither of such actions can be accomplished by Certrec using commercially reasonable efforts, and only in such event, Certrec will remove the item from use and the applicable fee will be equitably adjusted to reflect such removal. This Section states Certrec’s sole and exclusive remedy for Certrec’s infringement or misappropriation of intellectual property of a third party
7.3 Customer Indemnification. Client shall defend and indemnify Certrec and its Third-Party Vendors against any and all Losses incurred by Certrec and its Third-Party Vendors arising out of or in connection with a claim by a third party (i) alleging that Your Data or Your Trademarks, or any use thereof, infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Your breach of other Sections of this agreement.
Client shall indemnify, defend, and hold harmless Certrec, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof for damages, costs and attorneys’ fees Vendor incurs from any unaffiliated third-party claim arising from Your Content or Your use of the Services.
7.4 Indemnification Procedures. The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party’s failure to provide notification shall not affect the indemnifying party’s indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party’s ability to defend the applicable claim. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.
8.0 Marketing. Client hereby grants Certrec the right to use its name and the service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of Certrec and a brief scope of services provided.
9.0 Assignment. Client may not assign this Agreement without the prior written approval of Certrec. Any purported assignment in violation of this section shall be void.
10.0 Governing Law. Any action related to this Agreement shall be governed by the laws of Texas and any controlling U.S. federal law. No choice-of-law rules of any jurisdiction shall apply. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Texas.
11.0 Entire Agreement. This agreement represents the parties’ entire understanding relating to the use of the Services and supersedes any prior or contemporaneous, conflicting, or additional communications.
12.0 Agreement Enforcement. The failure of Certrec to enforce any right or provision in this Agreement shall not (1) constitute a waiver of such right or provision unless acknowledged and agreed to by Certrec in writing or (2) negate the validity of the remainder of this Agreement.
13.0 Agreement Transfer. Certrec reserves the right to assign its right to receive and collect payments hereunder.
Client hereby agrees to all the provisions of this Agreement.