This Analytics Agreement (the “Agreement”) by and between Above the Treeline, Inc. (“Treeline”), a Delaware corporation, and you (“User” or “I”). By clicking the <Accept> button following the Agreement, User agrees to be bound by this Agreement with Treeline as of the date hereof (the “Effective Date”). THE NATURAL PERSON CLICKING THE <ACCEPT> BUTTON BELOW REPRESENTS AND WARRANTS THAT S/HE IS AUTHORIZED TO SIGN CONTRACTS ON BEHALF OF, AND TO THEREBY BIND, USER, ALSO REFERRED TO AS “I” OR “YOU”.
WHEREAS, Treeline has developed the web-based strategic planning computer program known as Edelweiss Analytics including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (“Analytics”).
WHEREAS, Treeline wishes to provide User with access to its website located at edelweiss.plus, or such other URL as Treeline may from time to time operate in connection with the Analytics (the “Website”); and
WHEREAS, User wishes to access the Website and use the Analytics thereon.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
0. Restatement of Existing Agreement. The pre-existing agreement by which User accesses the Website and uses the Analytics is, and shall be, amended and restated hereby in its entirety.
1. Access, License & Data Rights
1.1 Subject to the terms and conditions of this Agreement, Treeline grants to User a non-exclusive, non-transferable, non-assignable right to access the Website and to use the Analytics, each for internal use only
1.2 The right and license granted pursuant to this Section 1.1 do not include the right to sublicense.
1.3 Upon the termination of this Agreement, Treeline will revoke User’s user IDs and passwords and User will promptly return any and all training/reference materials and all copies thereof to Treeline.
2 Ownership, Confidentiality
2.1 User agrees and acknowledges that Analytics users, including without limitation, User, benefit from Treeline’s ability to utilize and commercialize Analytics- and Analytics-use-related data. User, therefore, shall and hereby does grant Treeline a perpetual, irrevocable, worldwide, non-exclusive, assignable, fully-paid up, royalty-free license, with the right to sublicense through multiple tiers, to sell, offer to sell, make, have made, import, use, reproduce, distribute, perform, display, and create derivative works from the User-originated, -contributed, -generated, and -related information or data arising from or relating to User’s use of the Analytics (“User Data”).
2.2 User agrees and acknowledges that Treeline may disclose or distribute User’s Point-of-Sale (“POS”) Data to third party publishers who subscribe to Edelweiss Analytics service. Treeline shall not disclose or distribute User-specific POS Data to other third parties without User’s consent. For the avoidance of doubt, and nothing in this Agreement to the contrary, Treeline has the right to combine User’s POS Data with data from other users to create aggregate data for discloser or distribution to other users and third parties. Treeline’s presentation of aggregate data does not and will not identify individual Edelweiss Analytics users. For the avoidance of doubt POS Data, whether disclosed, distributed, or otherwise, shall not include any personal data.
2.3 User agrees that the Analytics and the Website are the sole property of Treeline and includes valuable trade secrets of Treeline. User further agrees and acknowledges that this Agreement grants User no right, title or interest to the Analytics or the Website or any content contained therein. User will not at any time take or cause any action that is inconsistent with or would tend to impair Treeline’s rights to the Analytics or the Website.
2.4 User agrees to treat the Website and Analytics as confidential and will not: (i) demonstrate, display, distribute, perform, modify, copy, sell or market the Website and Analytics to any third party; (ii) publish or otherwise disclose information relating to or resulting from access to the Website or performance of the Analytics to any third party; or (iii) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Website or Analytics or any portion thereof.
2.5 User understands and acknowledges that from time to time, the Website may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades or modifications, or causes beyond Treeline’s control that are not reasonably foreseeable by Treeline, including interruption or failure of telecommunication or digital transmission links, necessary maintenance, hostile network attacks or network congestion or other failures (collectively “Downtime”). Treeline shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability of the Website and in the case of any scheduled Downtime, if applicable, Treeline shall provide twenty-four (24) hour advance notice to User or such other shorter period of time as Treeline shall reasonably determine.
2.6 To ensure the security of User Data as used in connection with the Analytics, Treeline will encrypt User Data using a Secure Sockets Layer (SSL) certificate at the 1024 level (or at the 512 level for User web browsers that do not support 1024 encryption) or an equivalent standard. To further protect the integrity of User Data, the Analytics will permit User to control User/Employee IDs, passwords, and site permission levels.
3 No Warranty and Limitation of Liability
3.1 THE WEBSITE AND ANALYTICS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TREELINE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, ANALYTICS, AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR OTHER ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE REGARDLESS OF WHETHER TREELINE KNOWS OR HAD REASON TO KNOW OF USER’S PARTICULAR NEEDS.
3.2 TREELINE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR ANALYTICS WILL MEET VIEWER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR
IN A MANNER SELECTED FOR USE BY VIEWER, OR THAT THE OPERATION OF THE ANALYTICS WILL BE UNINTERRUPTED OR ERROR FREE. USER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED WRITTEN OR ORAL REPRESENTATION AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT. USER AGREES AND ACKNOWLEDGES THAT TREELINE DOES NOT CONTROL, AND BEARS NO RESPONSIBILITY FOR, THE ACTIONS OR OMISSIONS OF ANY USER. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE ANALYTICS REMAINS WITH USER. IN NO EVENT WILL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO ACCESS THE ANALYTICS, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.3 TREELINE SHALL HAVE NO LIABILITY FOR THIRD PARTY CLAIMS. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE ANALYTICS OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
3.4 IN NO EVENT SHALL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE ANALYTICS, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TREELINE’S ENTIRE LIABILITY TO USER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE FIVE HUNDRED DOLLARS ($500)
3.5 THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF USER HAS A CLAIM OR A CAUSE OF ACTION ARISING UNDER THIS AGREEMENT AND USER FAILS TO SERVE TREELINE IN CONNECTION WITH THAT CLAIM OR CAUSE OF ACTION PRIOR TO THE TWELVE (12) MONTH ANNIVERSARY OF THE OCCURRENCE OF THE FACTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, THEN USER HEREBY WAIVES, AND COVENANTS NOT TO SUE UPON, SUCH CLAIM OR CAUSE OF ACTION.
4.1 User hereby grants to Treeline a license to use its name, trademarks and other brand identifiers on the Website and in Treeline marketing materials for the sole purpose of identifying User as a recipient of the Services provided on the Website and a user of the Analytics.
4.2 Treeline will not be responsible for any delay or failure in performance caused by acts of God or any government or any other cause beyond Treeline’s reasonable control.
4.3 Treeline may assign this Agreement. User may not assign this Agreement without Treeline’s prior written consent. An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement. Any action in violation of this Section 4.3 shall be null, void, and without effect.
4.4 This Agreement will be governed, construed and enforced in accordance with the laws of the State of Michigan, without regard to its principles of the conflict of laws. Any and all litigation arising from or relating to this Agreement shall be filed and prosecuted before any court of competent subject
matter jurisdiction in the Eastern District of Michigan. The parties hereto consent to the exclusive jurisdiction of such courts over them, stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts. The Parties agree that the Uniform Computer Information Transactions Act (“UCITA”), as adopted in any State or Commonwealth, shall not apply to this Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to this Agreement.
4.5 This Agreement, including all Schedules and Exhibits hereto, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or agreements (whether written or oral) between the parties regarding such subject matter. In case of a conflict between a provision of the body of this Agreement and a specific provision of a Schedule, the provision of the Schedule shall prevail.
4.6 Treeline may modify or amend this Agreement at any time by notice delivered to User. User’s subsequent access of the Website and/or use of the Analytics conclusively demonstrates and constitutes User’s acceptance of the modification or amendment. User may not modify or amend this Agreement except by a writing accepted by Treeline. If User issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or document is for User’s internal purposes only and is not legally effective except to the extent specified in this Agreement.
4.7 It is the express intention of the parties that Treeline and Treeline personnel are independent contractors and not employees, agents, joint venturers or partners of User. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between User and Treeline or any Treeline personnel. Both parties acknowledge that Treeline and Treeline personnel are not User employees for local, state or federal tax purposes.
4.8 All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by electronic communication, personal delivery, overnight delivery service, or certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party.
4.9 In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and such provision shall be automatically modified so as to be valid, legal, and enforceable and to as nearly as possible reflect the intent of the parties.
4.10 The waiver by either party of a breach of a default of any provision of this Agreement by the other party will not be construed as a waiver of any prior or succeeding breach of the same or any other provision, nor will any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.
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