Reseller End User License Agreement

This end user license agreement (“Agreement”) governs the access, use and provisioning of the Services provided by Accruent, LLC or the Affiliate of Accruent, LLC (together with its Affiliates, “Accruent”) and licensed to Client from Reseller. By ordering the Services or accessing or using the Services through Reseller, Client agrees to be bound by the terms and conditions of this Agreement. Additional defined terms are set forth in Section 9 below.

 

1. SERVICES

1.1 SaaS Services. If SaaS Services are included in an Order Document, subject to the terms of this Agreement and the applicable Order Document (including any License Metrics outlined therein), Accruent grants to Client, during the Order Term (defined below), a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to: access and use such SaaS Services, Documentation, and any accompanying software provided by Accruent, including any APIs or SDKs, on a subscription basis for Client’s internal business purposes.

1.2 Software. Subject to the terms of this Agreement and any applicable Order Document (including any License Metrics outlined therein), Accruent grants to Client one or more of the following:

(i) Term License. If Software is included in an Order Document under a term-based license, during the Order Term (defined below), a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to install, run and use such Software and Documentation on a subscription basis, solely as enabled by the license keys, for Client’s internal business purposes;

(ii) Perpetual License. If Software is included in an Order Document under a perpetual license, a limited, irrevocable (except as otherwise specified herein), non-exclusive, non-transferable, non-sublicensable license to install, run and use such Software and Documentation, solely as enabled by the license keys, for Client’s internal business purposes; and/or

(iii) Software-Maintenance. If Maintenance is included in an Order Document, Maintenance during the Order Term (defined below). If ordered, Maintenance must be ordered for all applicable License Metrics used by Client.

 Unless otherwise specified in an Order Document, Client may only use Software object code in a single production environment, may only use two concurrent versions for version upgrade and may retain one copy solely for back-up purposes. Client acknowledges that all Software is licensed and not sold.

1.3 Professional Services. If Professional Services are included in an Order Document, subject to the terms of this Agreement and any applicable Order Document, Accruent grants to Client during the Order Term (defined below), a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Professional Services solely in connection with the applicable Services referenced in the applicable Order Document.

1.4 Services Term. The term for the SaaS Services (including Support), term-based Software, and/or Maintenance commences on the date specified in the applicable Order Document and shall continue for the initial term set forth therein (“Initial Term”) and, following the initial term, shall automatically renew for successive twelve (12) month periods (each, a “Renewal Term,” and together with the Initial Term, the “Order Term”). The term for Professional Services and the commencement date for Software under a perpetual license shall be as set forth in the applicable Order Document.

1.5 Access. The Services may be accessed by Client’s (a) employees and (b) consultants, contractors and agents who are not competitors of Accruent, and used to manage the License Metrics specified in the applicable Order Document. Each user must have a need for such access, be bound by confidentiality restrictions materially consistent with those set forth herein, and comply with the terms of this Agreement. Client shall be responsible for any act or omission by its employees, consultants, contractors and/or agents that use the Services, notifying Accruent of any actual or suspected violation, and reasonably cooperating with any investigation by Accruent or remedial measures reasonably required by Accruent in light of such matter.

1.6 Client Data and Compliance. Client shall comply with Applicable Law in connection with its use of the Services, including, without limitation, by providing notice to its employees, consultants, contractors and agents in its privacy policy or as it otherwise determines about how data will be used and shared with Accruent as a downstream processor, and obtaining and maintaining valid consent for Accruent to process data in connection with the Services, in each case before providing any data to Accruent. If Client uses SMS or other messaging functionality, it shall comply with all applicable requirements, including obtaining and maintaining valid consumer consent to send and receive messages. Client acknowledges that Client, not Accruent, is solely responsible for Client Data and for monitoring the content of Client’s and its users’ data transmitted through the SaaS Services and/or Software. Accruent may use third-party service providers to place cookies, tags or similar functionality in the SaaS Services and/or Software to compile metrics and analytics to help improve the Services, and which are covered by the third party’s privacy policy. Client shall ensure that its users do not provide unlawful, obscene, offensive or fraudulent content or data or violate Applicable Law, and agrees that Accruent may remove Client content or data that violates this restriction without notice to Client. Client will not share personal data with Accruent that is defined as sensitive personal data under Applicable Law, such as personal health information, financial information or biometric data, or other similar data that requires additional protections under Applicable Law.

1.7 Acceptable Use. Client shall use the Services solely as authorized in this Agreement and agrees it will not, and will not cause or allow any other party to: (i) modify, copy, decompile, disassemble, reverse engineer, attempt to derive any object code or source code from, or misappropriate, all or any portion of Accruent’s Services or any Accruent Intellectual Property; (ii) sell, resell, distribute, lease, rent, sublicense, or provide on a “service bureau” basis, all or any portion of the Services or any Accruent Intellectual Property, or provide unauthorized access to the Services, to any third party; (iii) use the Services to store or transmit any malicious code; including, any computer virus, worm, time bomb or Trojan horse; (iv) interfere with or disrupt the integrity or performance of the Services or Accruent’s networks or operations; (v) violate the intellectual property, privacy or personal rights of others; or (vii) use or permit, enable or assist any third party to use, the Services to create competing products or services. or violate this Agreement. If Client violates this Section 6, Accruent may suspend, terminate or otherwise limit Client’s access to, or use of, all or any part of the Services without notice, penalty or any refund of fees.

1.8 Audit and Usage. During the Order Term and for one (1) year following termination of the Agreement, Accruent may audit Client’s use of the Services to review compliance with this Agreement. Client understands that certain Software includes a License Metric management component to track usage and agrees not to impede, disable, or otherwise undermine its operation. Client shall maintain and make available to Accruent upon written request records sufficient to permit Accruent or its independent auditor to verify Client’s compliance with the terms of this Agreement. Accruent shall ensure any auditor is bound by confidentiality restrictions materially consistent with those set forth herein. Audits shall take place during Client’s regular business hours and no more frequently than annually. Enforcement by Accruent of any of its rights set forth herein do not constitute a waiver of its other rights under the Agreement.

 

2. INTELLECTUAL PROPERTY

2.1 Accruent Intellectual Property. All rights not expressly licensed to Client under this Agreement are reserved exclusively by Accruent, including, without limitation, all ownership, title and proprietary rights in and to Accruent Intellectual Property. “Accruent Intellectual Property” includes, without limitation, the Services (including any materials, deliverables or code provided as part of the Services) and all inventions, software, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, methodologies, know-how, tools, models, templates, source code, object code, algorithms, user interfaces and screen designs, Device Data transmitted to the SaaS Services and/or Software, and information, metrics, analytics and data generated or processed by Accruent or Accruent’s software or systems, whether pre-existing or created after the Effective Date, and whether developed by Accruent or a third party, including any modifications, enhancements and derivatives thereof (including without limitation, metrics, data, analytics and other information generated or processed by such Services).

2.2 Client Intellectual Property. Client retains sole and exclusive ownership to any and all Client Data, and Client shall be responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which it acquired Client Data. Client Intellectual Property specifically excludes Accruent Intellectual Property. Client grants Accruent the right to compile and use aggregated or anonymized Client Data and Device Data for Accruent’s legitimate business purposes, including to improve Accruent’s products and services, without further obligation to Client and acknowledges and agrees that Accruent shall be sole owner of any Accruent Intellectual Property that results from such use.

2.3 Feedback. Client chooses to provide any verbal or written ideas or feedback to Accruent or Reseller about the Services, Client hereby, assigns and transfers to Accruent all right and title in and to such feedback, including any derivatives thereof, without any further obligation to Client.

 

3. CONFIDENTIALITY. Client shall not disclose Accruent Confidential Information, or any part thereof, to any third party. Client shall only use Accruent Confidential Information to exercise Client’s rights and obligations under this Agreement. Furthermore, Client agrees to use the same degree of care to protect Accruent Confidential Information from accidental and/or unauthorized use and disclosure as Client use to protect Client’s own confidential information, but in no event shall such degree of care be less than a reasonable degree of care. For the purposes of this Agreement, “Accruent Confidential Information” means (i) any and all documents and other materials that are marked as being confidential or proprietary, and (ii) any and all information that one would reasonably deem to be confidential given the nature of the information and the circumstances regarding its disclosure, including, but not limited to, trade secrets, object and source code, know-how, proposed products and services, research and development, business forecasts, finances and customer lists.

 

4. INDEMNIFICATION. Client will indemnify, defend, or hold harmless Accruent from any action, suit, or proceeding brought against Accruent by a third party alleging that the Client Data, or Client’s use of the Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party, and Client will indemnify Accruent against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such claim, provided that Accruent: (i) provides prompt written notice of the claim to Client; (ii) give
s Client sole control of the defense and settlement of the claim (provided that Client may not settle any claim unless it unconditionally releases Accruent of all liability); and (iii) provides Client, at Client’s expense, with all reasonable information and assistance relating to the claim and reasonably cooperates with Client and its counsel. THIS SECTION STATES CLIENT’S ENTIRE OBLIGATION TO ACCRUENT AND ACCRUENT’S SOLE REMEDY FOR ANY CLAIM FOR INDEMNIFICATION.

 

5. NO WARRANTIES

5.1 Client Data. ACCRUENT, ITS LICENSORS, AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, AND ACCRUENT, ITS LICENSORS, AND ITS SUPPLIERS EXPRESSLY DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SAAS SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, (iii) ANY WARRANTY THAT CONTENT AND/OR PARTNER SOFTWARE WILL BE ACCURATE, RELIABLE, AND ERROR- FREE, AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO ADVICE, GUIDANCE, STATEMENT, OR INFORMATION GIVEN BY ACCRUENT, ITS AFFILIATES, CONTRACTORS, OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN.

5.2  NOTHING CONTAINED IN THIS SECTION (NO WARRANTIES) SHALL AIM TO LIMIT ANY LIABILITY TO THE EXTENT PROHIBITED BY LAW.

 

6. LIMITATION OF LIABILITY

6.1 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, ACCRUENT’S TOTAL LIABILITY (INCLUDING ATTORNEYS FEES AWARDED UNDER THE AGREEMENT) FOR ANY CLAIM UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR THE PRODUCT OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.

6.2 Exclusion of Indirect Damages. IN NO EVENT WILL ACCRUENT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), COST OF REPLACEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT ACCRUENT HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

7. TERM AND TERMINATION

7.1 Agreement Term. The term of this Agreement commences on the Effective Date and shall continue in full force and effect until the expiration or termination of all outstanding Order Documents (“Term”), unless otherwise terminated earlier as provided hereunder.

7.2 Termination. Accruent may terminate this Agreement, including all Order Documents, immediately upon written notice in the event: (i) that Accruent does not receive payment from the Reseller for the Services; (ii) that the Client commits a non-remediable, material breach of the Agreement; (ii) of institution of bankruptcy, receivership, legal insolvency, reorganization, or other similar proceedings by or against the Client under Applicable Law, if any such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted; or of the legal insolvency of, making of an assignment for the benefit of creditors of, the admittance of any involuntary debts as they mature by, or the institution of any reorganization arrangement or other readjustment of debt plan of the Client; or (iii) Client ceases or threatens to cease to carry on business or becomes unable to pay its debts. Where Accruent has a right to terminate the Agreement, Accruent may, at its discretion, terminate the Agreement in whole or only terminate the applicable Order Document. Order Documents that are not terminated shall continue in full force and effect under this Agreement. Upon any expiration or termination of this Agreement or an applicable Order Document, the Client shall promptly cease all use of the Services described thereunder and shall either securely destroy or securely transfer, at Accruent’s sole discretion, all Software, including all copies (except to the extent storage of any data is required by Applicable Law) and shall upon written request certify its compliance with the foregoing to Accruent in writing.

7.3 Suspension of Services.  In the event Client fails to meet any of its obligations under this Agreement, Accruent may, without limiting any of its other rights and remedies, suspend, terminate, or otherwise deny Client access to or use of, all or any part of the Services.

 

8. GENERAL PROVISIONS

8.1 Force Majeure. Neither party shall be liable to the other for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by the other party due to disruption or unavailability of communication or hosting facilities, utility or Internet service provider failure, denial of service attacks, acts of war, acts of terrorism, pandemic events, acts of God, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond the party’s reasonable control.

8.2 Assignment. In the event of a Change of Control, Accruent may assign this Agreement in its entirety (including its Services under any Order Document) to its parent company or other affiliated company. In the event such assignment is not subject to the foregoing, neither party may assign the Agreement or any of its rights and obligations herein without the other party’s prior written consent (which shall not be unreasonablNOTHING CONTAINED IN THIS SECTION (NO WARRANTIES) SHALL AIM TO LIMIT ANY LIABILITY TO THE EXTENT PROHIBITED BY LAW.y withheld).

8.3 Notice of U.S. Government Restricted Rights. If Client is the U.S. Government, or if SaaS Services or Software are acquired on behalf of the U.S. Government with U.S. Government federal funding, notice is given that the SaaS Services and/or Software are commercial computer software and documentation developed exclusively at private expense and are furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS. Software and the Protected Rights delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software and/or the Protected Rights by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in FAR 52.227-19, Commercial Computer Software License - (December 2007)”.

8.4 Export. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Client each represents that it is not on any U.S. government denied-party list. Client will not permit any of its users to access or use the Services in a U.S.-embargoed country or region or in violation of applicable export laws and regulations in the U.S. or any other applicable jurisdiction.

8.5 Anti-Corruption. Client has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Accruent in connection with this Agreement.

8.6 Miscellaneous. This Agreement, including any applicable Order Documents, cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, representations or warranties, or other communication and constitutes the parties’ entire agreement relating to its subject matter. Accruent may from time to time in its discretion discontinue certain Services or modify certain features or functionality of the Services. After Maintenance is discontinued, Accruent will no longer maintain or support the Software or Documentation. ACCRUENT MAY UPDATE THE TERMS OF THIS AGREEMENT OR POST AN UPDATED AGREEMENT ON THE ACCRUENT WEBSITE AT ANY TIME, AND, TO THE EXTENT PERMITTED BY LAW, SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AND (IF LEGALLY PERMITTED), SHALL APPLY RETROACTIVELY. CLIENT AGREES TO THE MODIFIED AGREEMENT BY CONTINUING TO USE THE SERVICES. This Agreement does not and is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor. Client agrees that Accruent may list Client’s name and logo on the Accruent website and in marketing collateral during the Term and will not unreasonably withhold its consent to conduct other marketing activities with Accruent, such as publishing a press release or a case study related to Client’s use of the Services. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. Any waiver of a party’s rights or remedies under the Agreement must be in writing to be effective. No failure of either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights. This Agreement is for the benefit of the parties and their successors and permitted assigns and does not confer any rights or benefits on any third party. Client shall provide the Reseller with Client contact information and shall ensure that such information is accurate and up-to-date at all times. If Client has a legal dispute with Accruent or if Client become a subject to insolvency or other similar legal proceedings, Client will promptly send a notice to the Reseller with a copy to Accruent via email to legal@accruent.com, Attention: General Counsel. If Client is located in North America, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its principles of conflict of laws, and the parties irrevocably consent to exclusive venue and jurisdiction in the courts of the State of Delaware for any dispute arising out of this Agreement. If Client is located in Brazil, this Agreement shall be governed by and construed in accordance with the law of Brazil, and the parties consent to exclusive venue and jurisdiction of Foro Central Cível da Comarca de São Paulo for any dispute arising out of this Agreement. If the client is located outside of North America and Brazil, this Agreement shall be governed by and construed in accordance with the laws of England, without giving effect to its principles of conflict of laws, and the parties consent to exclusive venue and jurisdiction in the English courts for any dispute arising out of this Agreement. Each party expressly waives its right to a trial by jury. The parties agree that this Agreement is not a contract for the sale of goods and that Article 2 and 2A of the Uniform Commercial Code and the Uniform Computer Information Technology Act, and the UN Convention on Contracts for the International Sale of Goods, are therefore expressly excluded. Sections 1.4, 1.5, 2, 3, 4, 6, 7.3 and 8 will survive any termination or expiration of this Agreement.

 

9. DEFINITIONS

9.1 “Accruent LLC” means Accruent, LLC, a Delaware limited liability company with a principal place of business at 11500 Alterra Parkway, Suite 110, Austin, TX 78758.

9.2 “Accruent Support Policy” means the Accruent Support Policy here: https://www.accruent.com/services-support/customer-support

9.3 “Affiliate” is an entity that controls, is controlled by, or is under common control of, a party.

9.4 “Applicable Law” means all local, national and multinational laws, rules, regulations and governmental obligations that are applicable to a party as the context requires.

9.5 “Client” is any person or legal entity with whom Reseller wishes to enter into, enters into or has entered into a legal relationship under an Order Document that is submitted by Reseller and accepted and countersigned by Accruent.

9.6 “Client Data” is any data that Client or its users provide, transfer or otherwise make available to Accruent under this Agreement.

9.7 “Device Data” means data that may be collected from any sensors, Internet of Things (IoT) devices, or similar data gathering equipment installed or located on Client’s premises or equipment and integrated with the SaaS Services and/or Software.

9.8 “Documentation” means user manuals, release notes, product documentation and other similar material for the SaaS Services or Software, as applicable, made available to Client by Accruent.

9.9 “Effective Date” means the start date set forth in the applicable Order Document.

9.10 “License Metrics” means any limits or restrictions on the license scope for the SaaS Services or Software set forth herein or in an applicable Order Document, including, without limitation, any usage limitations, limitations based on the number of users, leases, documents, work orders, locations or reports, or limitations based on square footage.

9.11 “Maintenance” is support for Software, including Upgrades and Updates, and is subject to the Accruent Support Policy. For the avoidance of doubt, Maintenance expressly excludes Professional Services. Client shall ensure that Accruent’s assigned technical personnel have all necessary remote access to the Software needed for Maintenance, as determined by Accruent in its sole discretion. Maintenance does not include support for: (i) Software altered or modified without Accruent’s prior written consent; (ii) Software that is incorrectly installed or implemented by Client or a third-party; (iii) any release for which Maintenance has been discontinued; (iv) Software used in breach of the Documentation or the Agreement; (v) errors or bugs that do not materially impair operation or that have been addressed in an Upgrade or Update; (vi) third-party systems or programs; (vii) Client users that are not adequately trained.

9.12 “Order Document” is a mutually executed order form, statement of work, or similar ordering document signed by Accruent and Reseller and describing commercial information and related terms for the Services licensed and/or provided to Client.

9.13 “Partner” is an Accruent-approved third-party vendor that may provide software or services under this Agreement in connection with Accruent’s Services.

9.14 “Partner Software” is software that is owned by a Partner and provided to Client by Accruent on a pass-through, reseller or OEM basis, and any applicable updates, upgrades, or documentation.

9.15 “Professional Services” are the professional consulting and technical services provided by Accruent or a Partner, and may include data conversion, implementation, site planning, configuration, integration, deployment, training, project management and assessment services.

9.16 “Reseller” means the authorized reseller of Services that signed a contract with Client.

9.17 “SaaS Services” is the hosted software provided to Client by Accruent and/or one or more of its Partners on a subscription basis, inclusive of Updates, as further described in an Order Document.

9.18 “Services” means, as applicable, the SaaS Services, Software, Maintenance, Support and/or Professional Services.

9.19 “Software” means installed software provided to Client by Accruent in machine readable object code (not source code) and/or one or more of its Partners under a term-license or perpetual license, as further described in an Order Document.

9.20 “Support” is the provision of standard technical support for the SaaS Services described in the applicable Order Document and further detailed in the Accruent Support Policy. For the avoidance of doubt, SaaS Support expressly excludes Professional Services.

9.21 “Upgrades” are new products, features or functionality related to the SaaS Services or Software, as applicable, for which Accruent generally charges its customers a separate fee.

9.22 “Updates” are error corrections, modifications, or security or product enhancements, or standard new releases, for the SaaS Services or Software, as applicable, that Accruent makes generally available to its customers at no additional cost.

Date Last Updated: April 1, 2023