End User License Agreement
This End User License (“Agreement”) is by and between Gilbarco Inc. (“Gilbarco”) and the entity (“Licensee”) using the software (“Software”) provided with a Gilbarco’s e-Mobility product (“Charger”). This Agreement is effective as of the date the Agreement is accepted online, the last date specified in the signature block, or the Software is used by Licensee, as applicable. This Agreement governs Licensee's access to and use of the Software (“Software”).
- “Charger" means electric vehicle charger that is manufactured or distributed by Gilbarco in which the Software is used.
- “Documentation” means the applicable user guides, training, and other documentation related to the use of and access to the Software.
- “Third Party Materials” means any third .20 software or other materials which are included within the Software.
- Grant of Rights. Subject to the terms stated herein, Gilbarco grants to Licensee a personal, non-exclusive, license to use the Software with the Charger provided by Gilbarco or one of its authorized distributors (“Distributor”).
- Ownership. Gilbarco or its licensors owns all intellectual property rights in the Software and associated source code, all Documentation, and any other rights not specifically transferred to Licensee hereunder.
- Restrictions and Obligations. In addition to any other restrictions set forth herein, Licensee shall not: (a) sell, rent, lease, sublicense, pledge, assign or otherwise transfer Licensee's rights, in whole or in part, to any third party, except as expressly permitted hereunder; (b) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; (c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (d) access all or any part of the Software to build a product or service which competes with the Software (e) modify, adapt, translate or create derivative works based on the Software or Documentation except as expressly permitted hereunder; (f) remove or alter any copyright, trademark, or other proprietary notices appearing on or in any part of the Software or Documentation and Licensee agrees to reproduce all such notices on copies; (g) use any portion of the Software to connect to any website or service other than the Gilbarco cloud platform; (h) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (i) publish, post, upload or otherwise transmit data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (j) use the Software or Documentation to create a product or service which is similar to or competitive with any offerings of Gilbarco; or (k) disclose to any third party benchmark tests or other comparisons of the Software with other services or software. Additionally, Licensee must use commercially reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify Gilbarco.
- Third Party Materials. The Software may contain Third Party Materials, including software (along with libraries, databases, drivers and similar components) that is made available for use under a free or open source license. Licensee shall not use or take action that would: (a) require the Software be disclosed or distributed in source code format; or (b) require the Software be redistributed at no charge; or (c) permits reverse engineering of the Software; or (d) require the Software to be used only for non-commercial purposes; or (e) require third party attribution; or (f) restrict any rights to assert or enforce patent rights.
- Prohibited Uses. The Software is not designed, intended, or certified for use with the operation of weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life support, pollution control, hazardous substance management, or for any use in which the failure of the Software could create a risk of personal injury or death. Licensee may not use the Software in connection with any of the foregoing.
- Feedback. Licensee grants to Gilbarco a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, transferable right, with full rights to create derivative works, and otherwise use Licensee’s comments, suggestions, enhancement requests, recommendations or other feedback.
- Support. The Software provided hereunder does not include support, and Gilbarco has no obligation to provide technical support, installation or training.
Licensee shall keep and maintain complete and accurate books, records and accounts relating to Licensee's compliance with its obligations hereunder. Gilbarco shall have the right, with 30 days prior written notice and during reasonable business hours, to examine such books, records and accounts to verify Licensee's compliance with its obligations. Any such audit shall be at Gilbarco's expense; provided, however, if such audit reveals a material breach of this Agreement, then Licensee shall pay the costs of the audit.
- Confidential Information. Each party to the Agreement acknowledges that such party (as a receiving party) may obtain or otherwise learn the Confidential Information of the other party (as the disclosing party). "Confidential Information" means any information relating to a disclosing party, its business, technology, suppliers, licensors, resellers, distributors, licensees, and third parties to whom the disclosing party has an obligation of confidentiality, whether in tangible or intangible form, which is either marked or designated as "confidential" or "proprietary," or disclosed under circumstances indicating its confidential or proprietary nature, or otherwise would be known to be confidential or proprietary by a reasonable person. The Confidential Information of a disclosing party shall be owned exclusively by the disclosing party. Confidential Information does not include information that: (a) was or becomes publicly known through no fault or breach hereunder; (b) was known by the receiving party before receipt from the disclosing party or becomes known without restriction from a source that does not owe a duty of confidentiality to the disclosing party; or (c) is independently developed by the receiving party without access to the Confidential Information. The parties may disclose the general nature of their relationship, but a party may not disclose the terms of any agreements or pricing without the prior written consent of the other party.
- Obligations. The receiving party agrees: (a) to protect the Confidential Information of the disclosing party from unauthorized dissemination and use the same degree of care it uses to protect its own sensitive information; (b) to use the Confidential Information of the disclosing party solely for performing its obligations and exercising its rights hereunder; and (c) not to disclose any Confidential Information of the disclosing party, except to its employees and contractors who have agreed to comply with the confidentiality obligations imposed hereunder. The receiving party may disclose Confidential Information if legally compelled to do so. If able, the receiving party shall notify the disclosing party of such compelled disclosure and cooperate with disclosing party to obtain a protective order. Because disclosure of the Confidential Information will cause irreparable harm and injury, the party harmed may seek an immediate injunction and other equitable relief, without the necessity of posting any bond or other security.
- Warranties; Disclaimers
GILBARCO MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. LICENSEE SPECIFICALLY ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION AND THAT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND MAY HAVE BUGS, ERRORS, DEFECTS OR DEFICIENCIES. GILBARCO DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, OR THAT THE OPERATION OF LICENSEE’S CHARGER WILL BE UNINTERRUPTED.
Licensee agrees to indemnify, defend and hold harmless Gilbarco, its shareholders, directors, officers, employees, agents, and affiliated companies from and against any losses, costs, or damages (including reasonable attorneys’ fees) resulting from or in connection with any claims made in connection with the use of the Software in a Charger.
- Termination for Breach. If either party materially breaches these terms, the non-breaching party may terminate the Agreement by providing 30 days prior written notice specifying reasonable details of the breach. Gilbarco may suspend Licensee’s rights to use the Software, if Licensee materially breaches any of the terms contained herein and fails to cure such breach within 30 days following written notice.
- Effect of Termination. Upon expiration or termination of the Agreement:
- Any rights granted by Gilbarco to Licensee shall terminate;
- Licensee shall immediately cease use of, deinstall and destroy or return all copies of the Software; and
- If destroyed, Licensee shall certify the destruction of the Software and all copies to Gilbarco.
- Survival. The provisions related to limitation of liability, indemnity (for licenses that are not terminated, or for Chargers that have already been distributed), and others which by their nature are intended to survive shall survive.
- Limitation of Liability
GILBARCO AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, LOST DATA OR THE LIKE) ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY. GILBARCO AND ITS LICENSOR’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED ONE HUNDRED US DOLLARS (US$100). THE WARRANTY DISCLAIMER AND LIMITATIONS ON LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GILBARCO AND LICENSEE, AND GILBARCO WOULD NOT BE WILLING TO PROVIDE THE SOFTWARE OR SOFTWARE WITHOUT SUCH LIMITATIONS.
- Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing herein or under the Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.
- Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, by operation of law or otherwise, any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign the Agreement without prior written consent solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, sale of stock, or like event, provided that: (a) the assigning party provides reasonable notice to the other party (and in the case of Licensee, notice prior to the assignment); (b) the other party shall have the right to terminate the Agreement by written notice if the assignee is a competitor of the other party. Any transfer of license rights shall be subject to a separate agreement.
- Compliance with Law. Each party will comply with all applicable laws, rules and regulations. Licensee agrees to comply with the U.S. Export Administration Regulations and the export laws of any country to which either party is subject. Licensee will not export or transfer its Charger, the Software, Documentation, or other items provided by Gilbarco to any destination, person or entity restricted or prohibited by relevant export laws.
- Government Use. The Software, Documentation and any other software provided are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Charger is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the foregoing will be only those specified in this Agreement.
- Third Party Beneficiaries. The licensor(s) of the Software are the express third party beneficiaries of this Agreement.
- Notices. Any notices shall be in writing and delivered personally, by email, or by courier with confirmation of delivery. Notices shall be deemed effective upon receipt.
Each party hereby represents and warrants that: (a) it has the full right, power and authority to enter into the Agreement; and (b) the performance of its obligations hereunder, do not and will not violate any agreement or obligation of such party. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflicts of law provisions. Any dispute regarding the Agreement shall be subject to state and federal courts with jurisdiction in the State of North Carolina. The parties disclaim the application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Any delay or omission of either party to exercise any right or remedy shall not operate as a waiver of any right or remedy hereunder. If any provision invalid, illegal or unenforceable, that provision shall be limited or eliminated to the extent necessary so that this Agreement will otherwise remain in full force and effect. If this document is translated into a language other than English, the parties agree that the English version shall control in the event of a conflict or ambiguity.