Upstream Report™ End User License Agreement.
Upstream Reports 0.3.0
©UPSTREAM RESEARCH 2016. All Rights Reserved.
UPSTREAM RESEARCH ("UPSTREAM RESEARCH") END-USER LICENSE AGREEMENT ("EULA")
UPSTREAM RESEARCH Upstream Report™ SOFTWARE, USER INTERFACE AND SERVICES
IMPORTANT - READ CAREFULLY BEFORE COPYING, INSTALLING OR OTHERWISE USING: THIS EULA IS A LEGAL BINDING CONTRACT BETWEEN YOU AND UPSTREAM RESEARCH. DO NOT COPY, INSTALL, OR USE UPSTREAM REPORT™ SOFTWARE OR USER INTERFACE OR SERVICES UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE UPSTREAM REPORT™ SOFTWARE OR USER INTERFACE OR SERVICES YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS EULA AND YOU AGREE THAT THIS EULA IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS EULA IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY ON WHOSE BEHALF THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE OR SERVICES ARE USED. IF YOU DO NOT AGREE, DO NOT USE THE Upstream Report™ SOFTWARE, USER INTERFACE OR SERVICES.
UPSTREAM RESEARCH OWNS ALL INTELLECTUAL PROPERTY RIGHTS IN THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE, SERVICES AND SUPPORTING DOCUMENTATION.
UPSTREAM RESEARCH PERMITS YOU TO USE THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE AND SERVICES ONLY AS AN AUTHORIZED USER HAVING PROVIDED PAYMENT IN EITHER PAYMENT OR PROMOTIONAL CODE, UNDER UPSTREAM RESEARCH’S REPORTING AS A SERVICE (RAAS) AGREEMENT WITH YOU OR YOUR EMPLOYER AND ONLY IN ACCORDANCE WITH THE TERMS OF THIS EULA. USE OF SOME THIRD PARTY MATERIALS ASSOCIATED WITH THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE AND/OR SERVICES MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS TYPICALLY FOUND IN A SEPARATE LICENSE AGREEMENT OR A "READ ME" OR "LICENCE.TXT" FILE PROVIDED IN ASSOCIATION WITH SUCH MATERIALS
BY ACCESSING OR OTHERWISE USING THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE AND/OR SERVICES, YOU (THE "LICENSEE") AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
This EULA applies to use of UPSTREAM RESEARCH’S UPSTREAM REPORT™ SOFTWARE, USER INTERFACE and Services provided by UPSTREAM RESEARCH by to Authorized Users under UPSTREAM RESEARCH’S RAAS agreement.
In this EULA, "Upstream Report™ Software" means (a) object and/or source code versions of computer programs, if any, downloaded in order to access services under UPSTREAM RESEARCH’S RAAS agreement (“Services”); (b) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media with which this EULA is provided; (c) related explanatory written materials, user manuals, electronic files and other documentation accompanying or published for such program or files ("Documentation"); (d) upgrades, updates, additions to, and copies of the foregoing, if any, provided to you by UPSTREAM RESEARCH or an authorized licensee, for example, downloaded software updates (collectively, "Updates"); and (e) any copies of the foregoing.
"UPSTREAM RESEARCH" means UPSTREAM RESEARCH, a Delaware corporation, 900 Winslow Way East Suite 100, Bainbridge Island, WA 98110, USA.
- SOFTWARE LICENSE.
- In order to use the Upstream Report™ Software and Services, Licensee must first: i) agree to this EULA and ii) must be an Authorized User under UPSTREAM RESEARCH’S RAAS agreement having a current subscription to access services thereunder. Licensee may not use the Upstream Report™ Software or Services if Licensee does not accept this EULA.
- Licensee can accept this EULA by: i. clicking to accept or agree to the EULA before accessing the Upstream Report™ Software where this option is made available to Licensee; or ii. accessing or using the Services.
- Upon Licensee's agreement to be bound by the terms of this EULA and subject to the terms of this EULA and Licensee's compliance with same, UPSTREAM RESEARCH grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to use the Upstream Report™ Software, User Interface and Services solely to obtain services from UPSTREAM RESEARCH via UPSTREAM RESEARCH’S RAAS platform during a current Subscription period under UPSTREAM RESEARCH’S RAAS agreement.
- No Support. UPSTREAM RESEARCH is not obligated to provide any technical or other support for the Upstream Report™ Software, User Interface or Services to Licensee beyond obligations, if any, in UPSTREAM RESEARCH’S RAAS agreement with Licensee or Licensee’s employer.
- Fees. UPSTREAM RESEARCH charges for subscriptions to use the services it provides under UPSTREAM RESEARCH’S RAAS agreement. UPSTREAM RESEARCH may choose in the future to additionally or alternatively charge for use of other software or functionality. If UPSTREAM RESEARCH in its sole discretion chooses to establish fees and payment terms for such use, UPSTREAM RESEARCH will provide notice of such terms as provided in Section 12 below, and Licensee may elect to stop using the Upstream Report™ Software, User Interface and Services rather than incurring fees.
- USE RESTRICTIONS. At all times during the term of this EULA:
- Permitted Users. Licensee may only use or grant access to the Upstream Report™ Software, User Interface and Services to individuals as permitted by UPSTREAM RESEARCH’S RAAS agreement, and may not allow any other persons to use the Upstream Report™ Software, User Interface and Services..
- Other Uses and Restrictions. Except to the extent required by applicable third party licenses, Licensee may not:
- use the Upstream Report™ Software, User Interface or Services except in accordance with this EULA;
- copy, modify, adapt, translate or create any derivative works of or based upon the Upstream Report™ Software, User Interface or Services;
- decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive the source code for the Upstream Report™ Software or User Interface that provides the Services;
- combine any part of the Upstream Report™ Software or User Interface with other software, or distribute any software or device incorporating a part of the Upstream Report™ Software, User Interface or Services;
- distribute, sell, rent, lease, sublicense, assign or otherwise transfer this EULA or its rights to the Upstream Report™ Software, User Interface or Services;
- remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Upstream Report™ Software or User Interface; or
- knowingly or recklessly access, store, distribute or transmit any malware, or any material during the course of its use of the Upstream Report™ Software, User Interface or Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or causes damage or injury to any person or property, and UPSTREAM RESEARCH reserves the right, without liability to the Licensee, to disable the Licensee’s access to any material that breaches the provisions of this section.
- Use, reproduction and distribution of components of the Upstream Report™ Software, User Interface or Services licensed under a third party license are governed solely by the terms of that third party license and not this EULA.
- Compliance with Laws. Licensee will comply with all export laws and regulations of the United States of America, or any other government having jurisdiction and agrees that it will not export or re-export the Upstream Report™ Software, User Interface or Services in violation of any such laws or regulations. Licensee will also comply with all applicable laws and regulations with respect to the import into any country or the use in any country of the Upstream Report™ Software, User Interface or Services. Licensee agrees to use the Upstream Report™ Software, User Interface or Services only for purposes that are permitted by this EULA and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States of America or other relevant countries).
- Licensee acknowledges and agrees that the form and nature of the Upstream Report™ Software, User Interface or Services that UPSTREAM RESEARCH provides may change without prior notice to Licensee and that future versions of the Upstream Report™ Software, User Interface or Services may be incompatible with applications developed on previous versions of the Upstream Report™ Software. Licensee acknowledges and agrees that UPSTREAM RESEARCH may stop (permanently or temporarily) providing the Upstream Report™ Software, User Interface or Services (or any features or functionality within the Upstream Report™ Software, User Interface or Services) to Licensee or to users generally at UPSTREAM RESEARCH’S sole discretion, without prior notice to Licensee.
- CONSENT TO USE OF DATA AND USER SUBMISSIONS. Licensee agrees that UPSTREAM RESEARCH and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about Licensee's, computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of Updates, product support and other services to Licensee (if any) related to the Upstream Report™ Software, User Interface or Services offered under UPSTREAM RESEARCH’S RAAS agreement, and to verify compliance with the terms of this EULA.
- UPSTREAM RESEARCH may use this information in compliance with applicable privacy laws to provide and improve UPSTREAM RESEARCH 's products and services or distribute the information to UPSTREAM RESEARCH 's partners and third party developers to improve their software, hardware and services designed for use with UPSTREAM RESEARCH’S products and services.
- OWNERSHIP. Except for the limited license rights expressly granted to Licensee hereunder, UPSTREAM RESEARCH retains all right, title and interest in the Upstream Report™ Software, User Interface or Services (including any copies that Licensee makes in accordance with this EULA), including any rights under the patent, trademark, copyright, trade secrets and other intellectual property laws, and this EULA does not grant to Licensee any intellectual property rights in the Upstream Report™ Software, User Interface or Services. UPSTREAM RESEARCH reserves all rights not expressly granted to Licensee in this EULA. The structure, organization and code underlying the Upstream Report™ Software or User Interface are the valuable rights of UPSTREAM RESEARCH. Licensee agrees that Licensee will not take any action to jeopardize, limit or interfere in any manner with such ownership by UPSTREAM RESEARCH.
- THIRD PARTY SOFTWARE APPLICATIONS AND DATA SERVICES. Portions of the Upstream Report™ Software or User Interface may utilize or include third party software and other copyrighted material ("Third Party Software"). Acknowledgements, licensing terms and disclaimers for such Third Party Software are contained in the Documentation, and Licensee's use of such Third Party Software is governed by such acknowledgements, licensing terms and disclaimers. The UPSTREAM REPORT™ Software or User Interface may interoperate with and allow Licensee to use Upstream Report™ Software applications, services, information and data not developed or offered by UPSTREAM RESEARCH ("Third Party Information"). Licensee's use of any Third Party Software or Third Party Information is governed by the terms and conditions made available to Licensee by the party from whom Licensee obtained such information. Neither Third Party Software nor Third Party Information is the responsibility of UPSTREAM RESEARCH, and LICENSEE'S USE OF THIRD PARTY SOFTWARE OR THIRD PARTY INFORMATION IS AT LICENSEE'S OWN RISK. UPSTREAM RESEARCH MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THIRD PARTY SOFTWARE OR THIRD PARTY INFORMATION.
- NO ADDITIONAL WARRANTY. THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE AND SERVICES ARE PROVIDED UNDER THE TERMS OF UPSTREAM RESEARCH’S RAAS agreement, WHICH CONTAINS ALL WARRANTIES, IF ANY. OTHERWISE, THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE AND SERVICES ARE MADE AVAILABLE TO THE LICENSEE ON AN "AS-IS" BASIS AND WITH ALL FAULTS. UPSTREAM RESEARCH MAKES NO ADDITIONAL WARRANTY OR REPRESENTATION AS TO THE USE OR PERFORMANCE OF THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE OR SERVICES OF ANY KIND BEYOND THOSE, IF ANY, MADE IN UPSTREAM RESEARCH’S RAAS agreement.
- LIMITATION OF LIABILITY. UPSTREAM RESEARCH WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE POSSESSION OF, USE OF OR INABILITY TO USE THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE OR SERVICES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM OR LIABILITY IS BASED UPON ANY CONTRACT, TORT, BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY AND NOTWITHSTANDING THAT ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE MAXIMUM LIABILITY OF UPSTREAM RESEARCH TO LICENSEE SHALL IN ANY EVENT NOT EXCEED THE LESSER OF (A) THE TOTAL SUBSCRIPTION FEES PAID FOR THE USER SUBSCRIPTIONS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH A THE CLAIM AROSE; OR (B) US$10,000. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND PARAGRAPHS 3 AND 4 WILL NOT APPLY ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES LIABILITY NOTWITHSTANDING THE LIMITATIONS OR EXCLUSIONS THEREIN.
- LICENSEE ACKNOWLEDGES AND AGREES THAT THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE AND SERVICES ARE NOT DESIGNED, INTENDED, AUTHORIZED OR SUITABLE FOR USE IN ANY TYPE OF SYSTEM, APPLICATION, SITUATION OR ENVIRONMENT WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, MEDICAL SYSTEMS OR WEAPONS SYSTEMS AND THAT LICENSEE WILL NOT USE THE UPSTREAM REPORT™ SOFTWARE, USER INTERFACE OR SERVICES IN SUCH SYSTEM, APPLICATION, SITUATION OR ENVIRONMENT.
- INDEMNIFICATION. The maximum extent permitted by law, Licensee agrees to defend, indemnify and hold harmless UPSTREAM RESEARCH, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney fees) arising out of or accruing from (a) Licensee's use of the Upstream Report™ Software, User Interface or Services, (b) any application Licensee develops using the Upstream Report™ Software, User Interface and Services that infringes or violates any right of any person or defames any person, and (c) any non-compliance by Licensee with this EULA.
- This EULA is effective from the date on which the Upstream Report™ Software or User Interface is installed or Services are accessed or used by Licensee until terminated. This EULA will terminate upon the earlier of: (1) termination of Authorized User’s subscription under UPSTREAM RESEARCH’S RAAS agreement; (2) automatically without notice from UPSTREAM RESEARCH if Licensee fails to comply with any provision of this EULA or if UPSTREAM RESEARCH is required to do so by law; (3) if Licensee commences or participates in any legal proceeding against UPSTREAM RESEARCH, then UPSTREAM RESEARCH may, in its sole discretion, suspend or terminate this EULA; and (4) Licensee may voluntarily terminate this EULA at any time by ceasing to use the Upstream Report™ Software, User Interface and Services.
- Upon termination of this EULA at any time and for any reason, Licensee will immediately discontinue any and all use of the Upstream Report™ Software, User Interface and Services, purge the Upstream Report™ Software and User Interface from all computer systems, storage media and other files, including any back-up copy, and return to UPSTREAM RESEARCH the Upstream Report™ Software, including the Documentation, and all copies thereof, or at the request of UPSTREAM RESEARCH, destroy the Upstream Report™ Software, the Documentation, and all copies thereof, and deliver to UPSTREAM RESEARCH certification that Licensee has complied with these termination obligations.
- If this EULA is terminated at any time and for any reason, Licensee will not be entitled to compensation of any kind, financial or otherwise.
- Paragraphs 3 through 9, 13(a) and 13(f) of this EULA and such other provisions as may reasonably be expected to remain in force will survive the termination of this EULA and will remain in full force and effect following such termination.
- NO WAIVERS. A waiver expressed or implied by a party of any default of the other party in the observance or performance of this EULA must be in writing, and such waiver does not constitute and is not to be construed as a waiver of any subsequent or other default, and a waiver of any provision of this EULA will not be effective unless in writing and signed by an authorized officer of UPSTREAM RESEARCH.
- MODIFICATIONS AND NOTICES. No reseller, distributor or dealer of the Upstream Report™ Software, User Interface or services offered under UPSTREAM RESEARCH’S RAAS agreement is authorized to make any modifications, extensions, or additions to this EULA. UPSTREAM RESEARCH may, in its sole discretion, modify this EULA. If UPSTREAM RESEARCH elects to do so, UPSTREAM RESEARCH will notify Licensee of such change. If Licensee does not agree to the change, then this EULA automatically terminates and Licensee must stop using the Upstream Report™ Software, User Interface and Services and comply with Section 10(b) of this EULA. If Licensee does not stop using the Upstream Report™ Software, User Interface and Services, then Licensee's use of the Upstream Report™ Software, User Interface and Services will continue under the changed EULA. UPSTREAM RESEARCH may give notices to Licensee, at UPSTREAM RESEARCH’S option, by posting on any portion of UPSTREAM RESEARCH’S Website or by electronic mail to any e-mail address provided by Licensee to UPSTREAM RESEARCH.
- GOVERNING LAW AND GENERAL PROVISIONS.
- Governing Law and Other General Provisions. This EULA will be governed by and construed in accordance with the substantive laws of Washington State, USA, excluding its conflict of law rules. The courts of or in the Washington State shall have exclusive jurisdiction over all disputes relating to this EULA. Licensee and UPSTREAM RESEARCH agree to submit to the exclusive jurisdiction of the courts of or located in Washington State. This EULA will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- Time. Time is of the essence of this EULA.
- Severance. If any provision in this EULA should be held invalid or unenforceable, such provision shall be modified to the extent necessary to render it valid or enforceable or severed from this EULA if no such modification is possible, and the other provisions of this EULA shall remain in full force and effect.
- Assignment. Licensee may not assign its rights or delegate its obligations under this EULA without the prior written consent of UPSTREAM RESEARCH, which consent may be withheld in the sole discretion of UPSTREAM RESEARCH. UPSTREAM RESEARCH may assign its rights or delegate its obligations under this EULA to any person in its sole discretion. This EULA shall be binding on and inure to the benefit of the parties and their successors and permitted assigns.
- No Other EULAs. The UPSTREAM RESEARCH’S RAAS agreement and this EULA are the entire agreement of the parties with respect to the Upstream Report™ Software, User Interface and Services, and there are no other agreements, written, oral, electronic or otherwise, with respect to the User Interface Upstream Report™ Software, and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Upstream Report™ Software, User Interface or Services. To remove any doubt, UPSTREAM RESEARCH’S RAAS agreement governs all use of services which are accessed by Licensee as an Authorized User thereunder via the Upstream Report™ Software or User Interface.
- Compliance with Licenses. If Licensee is a business or organization, Licensee agrees that upon request from UPSTREAM RESEARCH or UPSTREAM RESEARCH’S authorized representative, Licensee will within thirty (30) days fully document and certify that use of any and all Upstream Report™ Software, User Interface or Services at the time of the request is in conformity with Licensee's valid licenses from UPSTREAM RESEARCH.
Updated September 5, 2016
© 2016 Upstream Research, Inc. All Rights Reserved