EULA - Appian Perpetual

Contents:

Appian Perpetual EULA

IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) FULLY AND CAREFULLY BEFORE USING THE SOFTWARE AND SERVICE. BY CLICKING “ACCEPT” OR SIGNING THE PROPOSAL THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE IS AT LEAST EIGHTEEN (18) YEARS OLD AND HAS BEEN GRANTED THE AUTHORITY TO BIND THE INDIVIDUAL OR LEGAL ENTITY USING THE SOFTWARE SUBJECT TO THIS AGREEMENT. TRIMBLE MAPS (“PROVIDER”) WILL RELY ON THIS REPRESENTATION AND WARRANTY TO PROVIDE THE SOFTWARE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE AUTHORITY FROM YOUR COMPANY TO ACCEPT THIS AGREEMENT ON ITS BEHALF, DO NOT DO SO.

License Agreement

Trimble Maps (Provider) licenses the Appian Software to the User to operate Software, and agrees to support such use, pursuant to these terms and conditions.

  1. Definitions

1.1 “Software” means any computer program or database, or any enhancement, modification, upgrade or addition thereto, and any documentation for use therewith, supplied by Provider to User.

1.2 “User” means the registered User of Software.

1.3 “Location” is defined as a unique starting point for vehicles.

1.4 “Mapping” is defined as the street level mapping product bundle.

1.5 “Routing Folder” means the default physical windows folder specified by User login where routing data resides for a location(s).

1.6 “Agreement” means this agreement as amended.

1.7 “Support” means Provider’s standard customer support, pursuant to Provider’s support policies and procedures, as modified by Provider periodically and without notice.

1.8 “Analyst User” means user is not restricted to specified locations but license cannot be utilized for daily operational use.

1.9 “License” is defined as a purchased license of the software.

  1. Limitations

2.1 Software may be installed on and accessed by only one computer with one central processing unit (CPU) per purchased license as defined in this Agreement. Each purchased License may only route one location unless the purchased license is for an Analyst User. In the case of a server install, a license is required for each location. Mapping is licensed independently from Software. A Mapping license is required for each stand alone computer install of software or in the case of a server install one license is required for each Routing Folder.

2.3 Software may be used only by the User for internal business purposes. Unless specifically authorized by Provider in writing, Software may not be used by or on behalf of a third party. User is not authorized to sub-license Software in whole or part. User agrees not to resell or otherwise transfer to a third party any data extracted from the geographic database portion of the Software.

2.4 Software is the valuable exclusive property of Provider and is protected by applicable U.S. copyright law and international treaty provisions. Software may not be copied, decompiled, reverse assembled or disassembled without the express written authorization of Provider.

2.5 User acknowledges and agrees that this Agreement does not secure ownership of Software by User, and that User will safeguard and protect the same from unauthorized access, disclosure, copying and use by at least the same procedure and vigilance with which it protects its own valuable intangible property. User will immediately notify Provider of any unauthorized access, disclosure, copying or use of Software in violation of this Agreement. User will provide reasonable cooperation and assistance, at the sole cost of Provider, in any proceedings initiated by Provider for copyright infringement.

2.6 User agrees not to reverse engineer, decompile, disassemble or attempt to learn the source code of the software, and you may not redistribute the software without a written consensus.

  1. Fees

3.1 License fees are specified at time of sale and are payable according to the terms of the agreement between Provider and user. Annual Support fees are specified at the time of sale and will continue at that rate as long as User subscribes to or renews Support. Provider reserves the right to adjust support fees annually by a factor not to exceed changes in the US Consumer Price Index. Failure to subscribe or renew support will result in forfeiture of rates at time of sale. Annual support fees can be re-instated but must be paid in arrears to bring license up to date.

3.2 Fees do not include taxes, which are the sole responsibility of User, except taxes based upon the net income of Provider.

3.3 Interest on overdue payments will be charged at the rate of one and one-half percent (1.5%) per month.

  1. Disclaimers

4.1 Software is licensed ‘as is’ without any warranty express or implied. PROVIDER DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE and does not warrant that the Software is problem or error free. Assuming User is current on maintenance, PROVIDER will replace the CD without charge, save for applicable shipping charges.

4.2 PROVIDER will use reasonable efforts to correct any deficiency in the Software at no cost to User but Provider WILL NOT BE RESPONSIBLE FOR ANY DAMAGES INCURRED BY USER OR ANY THIRD PARTY, DIRECT, INDIRECT, CONSEQUENTIAL OR PUNITIVE, IN TORT OR IN CONTRACT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.3 The sole liability of Provider and the exclusive remedy of User for any cause arising hereunder shall be rescission of this Agreement and refund of the annual Support fees paid by User to Provider during the preceding twelve (12) months.

  1. Terms and Limitations

5.1 Any use of Software by User shall constitute acceptance of this Agreement by User.

5.2 This Agreement shall commence on the date of acceptance by User and shall continue for a term of one (1) year thereafter unless terminated earlier for breach in accordance with the provisions of Section 5.4 below.

5.3 Subject to earlier termination for breach, this Agreement shall be automatically renewed for terms of one (1) year unless either party shall notify the other in writing that it does not wish to renew this Agreement 30 days prior to the annual termination date.

5.4 Either party may terminate this Agreement for material breach or default by the other by notice describing such breach, such termination to be effective thirty (30) days after receipt unless the defaulting party shall have cured the breach or default within such thirty (30) day period. Upon termination of this Agreement, User shall destroy all copies of Software in whole or in part and shall provide Provider a certificate of compliance with this provision signed by the chief executive officer of User.

  1. Infringement

6.1 Should Software become subject to any claim of infringement, or in the opinion of Provider become likely to become the subject of any such claim, Provider at its option and expense may (i) procure for User the right to continue to use the Software, (ii) replace or modify the Software to make it non-infringing, or (iii) return to User the net license fee paid for such Software and terminate the license of such Software to User.

6.2 THIS SECTION 6 STATES THE ENTIRE LIABILITY OF PROVIDER WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT BY SOFTWARE OR ITS USE OR OPERATION.

  1. General

7.1 Notification pursuant to this Agreement shall be in writing addressed to either party, delivered by private express courier or United States Postal Service, in either case with written receipt for delivery, and shall be effective upon such delivery.

7.2 This Agreement expresses the entire agreement of the parties, superseding all prior agreements, negotiations and discussions. It may be amended or modified only in writing, and is subject to the same terms currently in effect. It may not be assigned by either party without the prior written consent of the other party, which approval shall not be unreasonably withheld. It shall be governed by and interpreted in accordance with the laws and courts of the State of New Jersey.

Copyright © 2021 Trimble. All rights reserved.

APPIAN SUBSCRIPTION EULA

IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) FULLY AND CAREFULLY BEFORE USING THE SOFTWARE AND SERVICE. BY CLICKING “ACCEPT” OR SIGNING THE PROPOSAL THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE IS AT LEAST EIGHTEEN (18) YEARS OLD AND HAS BEEN GRANTED THE AUTHORITY TO BIND THE INDIVIDUAL OR LEGAL ENTITY USING THE SOFTWARE SUBJECT TO THIS AGREEMENT. TRIMBLE MAPS (“Provider”) WILL RELY ON THIS REPRESENTATION AND WARRANTY TO PROVIDE THE SOFTWARE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE AUTHORITY FROM YOUR COMPANY TO ACCEPT THIS AGREEMENT ON ITS BEHALF, DO NOT DO SO.

  1. Definitions.
  • “Analyst User” (Appian only) means a User who is authorized to use the Software and has been supplied user identifications and passwords by Subscriber (or by Provider at Subscriber’s request), and who has licensed rights of use of the Software as limited by this Agreement. An Analyst User is not restricted to specified locations but the license cannot be utilized for daily operational use.
  • “Service” or “Services” means version(s) of Provider’s software or other products offered to Subscriber as a subscription service as outlined in the Order Form(s), attached or incorporated by reference hereafter.
  • “User Documentation” means the user guide(s) for the Service as updated by Provider in its sole discretion from time to time, available via the Services or via Provider’s Client Center.
  • “Subscriber Data” means all electronic data or information submitted by Subscriber and Users to the Service as further described in Section 3.5, below. Except as otherwise permitted herein, Provider may access Subscriber and Subscriber’s User accounting, including Subscriber Data, solely to respond to service or technical problems or at Subscriber’s request.
  • “Users” means Subscriber’s employees, consultants, contractors or agents who are authorized by Subscriber to use the Service and have been supplied user identifications and passwords by Subscriber (or by Provider at Subscriber’s request). Consultants, contractors or agents must sign a Non-Disclosure Agreement or similar agreement to protect the terms of this Agreement with Subscriber in order to be considered an authorized User by Provider.
  1. Service.

2.1 Provision of Service. Provider shall make the Service available to Subscriber pursuant to this Agreement and all Order Forms and applicable Exhibits and Schedules attached hereto or incorporated herein by reference.

  1. Use of the Service.

3.1. Provider Responsibilities. Provider shall: (i) in addition to its confidentiality obligations under Section 6, and except as otherwise authorized herein, not use, edit or disclose to any third-party the specific Subscriber Data; (ii) maintain the security and integrity of the Service and Subscriber Data; (iii) use commercially reasonable efforts to make the Service generally available, and; (iv) comply with all applicable local, state, and federal laws in providing the Service.

3.2. Subscriber Responsibilities. Subscriber is responsible for all use of the Service as authorized herein by all Users. Subscriber shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Subscriber Data; (ii) prevent unauthorized access to, or use of, the Service, and notify Provider promptly of any such unauthorized use; and (iii) comply with all applicable local, state, and federal laws in using the Service.

3.3. Use Guidelines. Subscriber shall have no rights in the Source Code of any Services. Subscriber shall cause all Users to use the Service solely for its internal business purposes as contemplated by this Agreement, and shall cause all Users and unauthorized users to not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Service available to any third party, other than as expressly contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material that may be harmful to children or violate third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.

3.4. Collection of Data. Subscriber authorizes TTE and its Affiliates to remotely and automatically collect freight, location, and any and all other transportation management system data that may include data specific to its shipper customers (hereafter “Data”) that is input by, or on behalf of, Subscriber into the TTE licensed software and/or services products to Subscriber for the purposes(s) authorized herein. This Agreement is in addition to, and does not replace or alter, any other data collection or like agreement(s) that may be in executed and place between the parties hereto. Subscriber hereby further authorizes TTE to collect and use such Data for the purpose of: (1) transmitting such Data for use by Subscriber and it’s designated customers for internal business operations, thus providing such accurate and comprehensive information that will enable them to best understand the transportation and movement of the related freight, and; (2) providing data to third-party freight tracking vendor’s, if applicable and as authorized by Subscriber, for visibility and information as to freight location and status, and; (3) for use of anonymized and aggregated Data by TTE to enhance and improve its software and services products, and to create industry standard benchmarks and reporting. TTE agrees that it will treat Data collected from Subscriber as Confidential Information and that, except as authorized herein, such Data will not otherwise be shared with any other third-party, without advance written authorization from Subscriber so permitting.

3.5. Suspension of Service. The Service will be disabled in default of any payment of Subscriber Fees, provided Subscriber is furnished notice of same and a fifteen (15) day opportunity to cure such default.

  1. Proprietary Rights.

4.1. Reservation of Rights. The Service and all User Documentation is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Subscriber understand and acknowledges that the Service, and any improvements, modifications or changes to the Services provided hereunder and all copies thereof are proprietary to Provider and title thereto remains in Provider. All applicable rights to patents, copyrights, trademarks, and trade secrets pertaining to the Service and the improvements, modifications or changes thereto or copies thereof to others, except to its employees in the ordinary course of their duties for Subscriber.

4.2. License Grant. Provider grants Subscriber and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in object code format in accordance with the terms of this Agreement and as further limited in the relevant Order Forms. An Analyst User license grant hereunder, however, is further limited and does not include a license to Use software for operational routing purposes.

4.3. Restrictions. Subscriber shall not and shall not permit any employee or third party, to: (i) except with regard to Subscriber Data, modify, copy or create derivative works based on the Service; (ii) except to the extent that such features are expressly contemplated by the Service, create Internet links to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on Subscriber’s own intranets or otherwise for its own internal business purposes; or (iii) disassemble, reverse engineer, or decompile the Service, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. Appian Software may be installed on and accessed by only one computer with one central processing unit (CPU) per purchased license as defined in this Agreement. Each purchased License may route operationally for the number of Trucks and/or locations licensed unless the purchased license is for an Analyst User.

4.4. Subscriber Data. As between Provider and Subscriber, all Subscriber Data is owned exclusively by Subscriber. Subscriber Data shall be considered Confidential Information subject to the terms of this EULA. Provider may access Software, including Subscriber Data, solely to respond to Software or technical problems or at Subscriber’s request.

  1. Confidentiality.

5.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Subscriber Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

5.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

5.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.

5.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

5.5. Remedies. Both parties acknowledge that a breach by the other of this Section 5 will give rise to irreparable injury to the non-breaching party or that the remedy at law for such breach will be inadequate and that damages resulting from such breach are not readily susceptible to be measured in monetary terms. Therefore, it is acknowledged that upon adequate proof of a party’s violation of any provision of this Section 5, the non-breaching party will be entitled to immediate injunctive relief and a temporary order restraining any threatened or future breach of this Section 5. Nothing in this paragraph will be deemed to limit the non-breaching party’s remedy at law or in equity for any breach by the other party of any provision of this Section 5. The provisions of this Section 6 shall survive the expiration or termination of this Agreement.

  1. Warranties & Disclaimers.

6.1. Warranties. Provider represents and warrants that the Service shall perform substantially as specified in the User Documentation, which is incorporated by reference. Provider’s sole obligation and liability under this warranty shall be to undertake reasonable effort to correct defects in the Service, as modified for Subscriber, which materially adversely affects Subscriber. The term of this warranty shall be in effect during the Subscription Term outlined in the Software Order Form(s). Provider shall have no obligation to perform any work or provide any service, pursuant to this Agreement as long as Subscriber is in default of any payment due and payable hereunder.

6.2. Disclaimer. THE WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED OR WHICH MAY ARISE UNDER LAW OR EQUITY, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. PROVIDER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SERVICE, OR IN CONNECTION WITH THE FULFILLMENT OF ANY OBLIGATION UNDER THIS AGREEMENT. UNDER ALL CIRCUMSTANCES WHATSOEVER, PROVIDER’S LIABILITIES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SUBSCRIPTION FEES ACTUALLY PAID BY SUBSCRIBER PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM. WITHOUT LIMITATION OF THE ABOVE, PROVIDER GRANTS NO WARRANTY THAT THE SERVICE IS FREE FROM DEFECTS OR, ERROR-FREE, OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM.

  1. Mobile Communication Devices.

3.1. Transmission of Messages to/from Devices. Subscriber acknowledges and understands that the ability to transmit messages to and from the Third Party Provider devices are subject to the coverage areas provided by such Provider and that such networks may be temporarily interrupted or otherwise limited by factors including, but not limited to, atmospheric, environmental, topographical conditions, or network facility changes, modifications, updates, relocations, or repairs.

3.2. Use of Mobile Communications Devices. Subscriber acknowledges that use of the mobile communications devices while the vehicle is in motion is dangerous. Accordingly, Subscriber shall instruct all of its drivers not to use any Trimble Maps mobility software when the vehicle is in motion unless the vehicle is being driven by a team and the non-driver operates the mobile communications device, provided the non-driver ensures that such operations do not distract the driver.

  1. Indemnification.

7.1. Indemnification by Provider.
(a) Indemnification. Provider shall be responsible for, and shall indemnify, defend and hold harmless Subscriber from any damages, liabilities, charges, expenses, and claims (including any suit) brought against Subscriber by a third party alleging that any of the Service infringes a United States or Canadian patent, copyright, mask work right, or any other third party intellectual property right and shall pay all costs and damages finally awarded, provided that Subscriber gives Provider prompt written notice of such claim, and information, reasonable assistance and sole authority to defend or settle the claim. Provider shall not have any liability if the alleged infringement arises out of Subscriber’s technology, Subscriber’s combining with, adding to or modifying the software, or Subscriber’s failure to use materials or instructions provided by Provider that would have rendered the Service non-infringing.
(b) Remedy. In the defense or settlement of the claim, Provider may obtain for Subscriber the right to continue using the Service may replace or modify the Service so it becomes non-infringing, or, if such remedies are not reasonably available, may terminate this Agreement. PROVIDER DISCLAIMS ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL OR SPECIAL DAMAGES. PROVIDER’S SOLE OBLIGATION FOR INDEMNIFICATION OF SUBSCRIBER OR CLAIMS OF INFRINGEMENT BY SUBSCRIBER IS DESCRIBED IN THIS SECTION AND, NOTWITHSTANDING ANY OTHER TERMS IN THIS AGREEMENT, SHALL NOT EXCEED THE AMOUNT PAID BY SUBSCRIBER AS SUBSCRIPTION FEES FOR THE INFRINGING SERVICE.

  1. Term & Termination.

8.1. Term of Agreement. The Term of this Agreement commences on the Subscriber’s acceptance hereof and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated as outlined in this Section 8.

8.2. Termination for Cause. This Agreement and the Service granted hereunder may be terminated by Provider if the Subscriber defaults in the performance of any of its obligations hereunder and such default continues for thirty (30) days after receipt of notice from Provider, provided, however that Provider shall have the right to immediately terminate this Agreement in the event of a breach by Subscriber of the provisions of Section 6 of this Agreement.

8.3. Return of Subscriber Data. Upon request by Subscriber made within 30 days of the effective date of termination, Provider will make available to Subscriber for download a file of Subscriber Data in a mutually agreeable electronic format. After such 30- day period, Provider shall have no obligation to maintain or provide any Subscriber Data and shall thereafter, unless legally prohibited, delete all Subscriber Data in its systems or otherwise in its possession or under its control.

  1. General Provisions.

9.1. Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the parties to each other by a means evidenced by a delivery receipt, by confirmed facsimile or by email providing a delivery receipt. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email providing a delivery receipt. Notices to Provider shall be addressed to the attention of its “Legal/Contract Manager”. Notices to Subscriber are to be addressed to the Subscriber’s primary address on the Order Form.

9.2. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this EULA shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

9.3. Assignment. This EULA will bind and inure to the benefit of each party’s permitted successors and assigns. Provider may assign or transfer this EULA to any of its affiliate companies (including A Trimble Company or any of its direct or indirect subsidiaries) or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Provider’s assets or voting securities. Subscriber may not assign or transfer this EULA, in whole or in part, without Provider’s written consent. Any attempt to transfer or assign this EULA without such written consent will be null and void.

9.4. Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Ohio, without regard to its conflicts of laws provisions. Provider and Subscriber agree that no provision of the Uniform Computer Information Transactions Act (“UCITA”) is intended to apply to the interpretation of this Agreement, whether or not UCITA is enacted in the State in which the law governs interpretation of this Agreement. Venue of all claims shall be in federal and state courts having jurisdiction in Cuyahoga County, Ohio.

9.5. Entire Agreement. Except as otherwise provided herein, this Agreement, including all exhibits and schedules attached hereto, along with all Order Forms executed hereunder, constitute the entire agreement between the parties and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this EULA shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event, however, of a conflict between this EULA and a negotiated Master Agreement between the parties, the negotiated Master Agreement shall control.