END USER LICENSE AGREEMENT
1. ACCEPTANCE OF THE TERMS AND CONDITIONS
ULMA C y E, S. Coop., a cooperative company incorporated under the laws of Spain, with registered address at Paseo Otadui 3, 20560 Oñati, Spain, with Spanish Tax Number F20023065 ("ULMA") is the owner and operator of a web based software under the trademark myULMA ("myULMA").
myULMA allows users to access and/or download information regarding construction sites serviced by ULMA and/or its affiliated companies with construction equipment (including but not limited to drawings, product catalogues, user guides, invoices and delivery notes and pictures), uploading documents and receiving notifications of new contents and ULMA's commercial information. Therefore myULMA may include information created and published by ULMA ("ULMA Contents") and third parties ("User Content"), such as text, images, photographs, graphics, audio and video, data, code, and software (collectively, the ULMA Contents and User Content are referred to as "Content").
ULMA may provide the myULMA services directly or through authorized licensees of myULMA ("Authorized Distributors").
By accessing myULMA you ("YOU") accept the terms and conditions of this End-User License Agreement of myULMA ("EULA"). IF YOU DO NOT WHISH TO ACCEPT THE EULA, YOU CANNOT ACCESS myULMA.
ULMA may modify the EULA to reflect changes in ULMA's business, applicable law, or for other reasons deemed necessary by ULMA. If the terms of the EULA change, ULMA will provide notice, which may include, but is not limited to notice provided through myULMA. Except where prohibited by law, updates to the EULA will apply once the changes have been posted or notice has otherwise been given. Changes to the EULA will, however, not apply retroactively. If YOU do not agree to changes made to the EULA, YOU must discontinue the use of myULMA and/or the affected ULMA Contents, or User Content.
If an Authorized Distributor has agreed, with YOU and/or YOUR employer, to terms and conditions that differ from the terms and conditions of the EULA, the terms agreed with the Authorized Distributor shall apply. However, sections 8, 10, 11 and 12 of the EULA shall prevail over any such agreement and shall always govern the terms, rights and conditions that are provided for in sections 8, 10, 11 and 12 of the EULA.
2. USER CONTENT AND LICENSE TO ULMA
ULMA does not claim ownership of User Content that any user posts, uploads, inputs or submits to myULMA. By posting, transmitting or uploading any User Content, including any article, information, data, code, text, software, documentation, graphic, image, marketing material, video, photograph, message, suggestion, feedback, idea, or posting to myULMA, YOU grant to ULMA and/or its Authorized Distributors a perpetual, irrevocable (subject to mandatory data protection requirements), non-exclusive, world-wide, fully-paid up and royalty free license to use such User Content limited to the extent necessary to operate and maintain my ULMA
YOU acknowledge and agree that the relationship between YOU and ULMA is not a confidential, fiduciary, or other special relationship. Nothing in this EULA shall prohibit or restrict ULMA's and/or it Authorized Distributor's right to create or obtain User Content or submissions similar to or competitive with the User Content that YOU may submit.
3. PERMISSIBLE USE OF myULMA AND USER CONTENT
myULMA, the ULMA Contents, and the User Content are solely to provide information to improve the experience of the customers of ULMA and/or its affiliates, including subcontractors and/or other third parties related thereto involved in a construction site and/or project.
FOR THE SAKE OF CLARITY, THE USE OF myULMA AND, IN PARTICULAR, DOWNLOADING AND/OR ACCESSING ULMA CONTENTS AND ACCESSING DOWNLOADING AND/OR UPLOADING USER CONTENT DOES NOT RELIEVE YOU OF YOUR OBLIGATIONS AND RESPONSIBILITY UNDER THE LAWS APPLICABLE TO THE RELEVANT CONSTRUCTION PROJECT AND/OR SITE, INCLUDING BUT NOT LIMITED TO OBLIGATIONS RELATED TO OCCUPATIONAL HEALTH AND SAFETY.
YOU may not use myULMA in any manner that could damage, disable, overburden, or impair any ULMA server, or the network(s) connected to any ULMA server, or interfere with any other party's use and enjoyment of myULMA. YOU may not attempt to gain unauthorized access to myULMA, other accounts, computer systems or networks connected to any ULMA server, through hacking, password mining or any other means. YOU may not obtain or attempt to obtain any contents or information through any means not intentionally made available through myULMA.
YOU agree not to use myULMA to:
publish, upload, post, email, transmit or otherwise make available any User Content that (a) the relevant person has not the right to make available (b) is unlawful, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (c) infringes any Intellectual Property Rights of any party, (d) includes any unsolicited or unauthorized advertising, promotional contents, surveys, junk mail, spamming, chain letters, or any other form of solicitation, commercial or otherwise, or (e) contains a software virus, Trojan horse, worm, time bomb, cancelbot, corrupted file, or any other computer file or software designed to interrupt, destroy, damage or limit the functionality of any computer hardware, software or other property;
defame, harass, abuse, stalk, threaten or violate the legal rights of others such as rights of privacy and publicity or business reputation;
impersonate any person or entity, including, but not limited to, an ULMA official, ULMA employee, or any other third party, or falsely state or otherwise misrepresent YOUR affiliation with a person or entity;
forge email headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through myULMA;
download any file or User Content posted by another User that YOU know, or reasonably should know, should not be legally reproduced, displayed, performed and/or distributed in such manner;
interfere with or disrupt the servers, or networks which support myULMA, or disobey any requirements, procedures, policies or regulations of networks connected to myULMA;
violate any applicable local, provincial, national or international law and any regulations;
harvest, collect, or store personal information or data of other users.
YOUR access and use of any software or related documentation, including developer tools and sample code, and any application program interface information provided on myULMA or the updates hereto (collectively "Software") is governed by the EULA.
The Software may not be modified or altered by YOU in any way, decompiled or reverse engineered and the Software may not be redistributed by YOU.
All ULMA Software is the copyrighted work of ULMA. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works, including the ULMA Software, is an infringement of the copyright holder's rights.
4.TERMINATION OF USE
ULMA and/or the Authorized Distributors may, in their sole discretion, at any time decide to discontinue providing access or to limit YOUR access to myULMA, any areas thereto, or any ULMA Contents or User Content provided on or through myULMA. In such case ULMA and/or the Authorized Distributors may, in their sole discretion, at any time, terminate the EULA.
After the termination of the EULA, ULMA may, in its sole discretion, suspend or terminate YOUR account and/or delete YOUR Content from myULMA. ULMA shall not be liable to YOU or any third party for any such suspension or termination.
5. ULMA CONTACT
ULMA is not obligated to evaluate or provide any comments to YOU regarding User Content that YOU submit. At ULMA and/or the Authorized Distributors' sole discretion, ULMA and/or the Authorized Distributors may contact YOU with critiques, updates, feedback, status or questions regarding the EULA.
6. CONFIDENTIAL INFORMATION
YOU agree to not to reproduce any Confidential Information to which YOU are provided access through myULMA in any form except as authorized at the time of disclosure. Any reproduction of Confidential Information shall remain the property of ULMA or the third party that has prepared such information and shall contain any and all confidential or proprietary notices or legends which appear on the original. YOU agree to (a) take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) to use Confidential Information solely as authorized at the time of disclosure and (c) not to disclose any Confidential Information to any party without the prior written consent of ULMA or the third party that has prepared such information. YOU do not acquire any rights in Confidential Information except the limited rights as described herein. In no event shall YOU shall use Confidential Information to create, enhance, modify, rent, lease, loan, sell, distribute or create derivative works based on myULMA and/or other ULMA products and services, or compete with myULMA and/or other ULMA products and services in whole or in part.
As used herein, 'Confidential Information' shall mean all business secrets, intellectual property rights, and other information ULMA or third parties protect against unrestricted disclosure to others which is (i) either labelled Confidential or (ii) reasonably identifiable as confidential based on the type of information and the manner of its disclosure. Without limitation, ULMA's Confidential Information include product catalogues, user guides, support guides and drawings by ULMA and/or its subsidiaries.
As used herein 'reasonable steps' means those steps YOU take to protect YOUR own Confidential Information, which shall not be less than the industry standard of care.
ALL USER CONTENT POSTED BY YOU TO myULMA, ARE POSTED AT YOUR OWN RISK. ULMA AND/OR THE AUTHORIZED DISTRIBUTOR TAKE NO RESPONSIBILITY FOR THE USE OR MISUSE OF ANY SUCH UPLOADED INFORMATION BY ANY OTHER USER OF myULMA OR OTHERWISE.
7. YOUR INFORMATION, PRIVACY, AND DATA PROTECTION
ULMA and/or the Authorized Distributor will comply with the regulations for personal data protection in force in the relevant jurisdictions at any given time, each one fulfilling their obligations pursuant to the requirements of such applicable Laws.
8. INTELLECTUAL PROPERTY RIGHTS
As used herein, 'Intellectual Property Rights' means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secret or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
All Intellectual Proprietary Rights to any ULMA software (including myULMA), any ULMA website, any ULMA Contents, and User Content belongs to ULMA or the individual or entity that submitted it. Nothing in this EULA shall be deemed to give YOU the right to modify, copy, transmit, display, reproduce, publish, create derivative works from, transfer, or sell any ULMA software (including myULMA), any ULMA website, any ULMA Contents, or any User Content for any reason, unless otherwise expressly permitted by the EULA or by law. YOU hereby agree to assign and do assign to ULMA (and ULMA accepts such assignment) any modifications or derivative works of any ULMA software (including myULMA), any ULMA website, any ULMA Contents made by YOU in contravention of this limitation, without remuneration of any kind.
9. RESPONSIBILITY FOR CONTENT AND LINKS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF CONTENT SHALL BE AT YOUR OWN RISK. Any Content, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the Content. ULMA and/or the Authorized Distributor do not represent or endorse the accuracy, reliability, completeness, usefulness, non-infringement of intellectual property rights, or quality of any Content provided by third parties on myULMA. ULMA may remove any Content posted on myULMA at ULMA and/or Authorized Distributor's sole discretion. If YOU believe that Content for which YOU hold the copyright on is being infringed upon on myULMA, YOU shall give notice to ULMA by contacting email@example.com.
myULMA may contain links to external websites. ULMA and/or the Authorized Distributor is not responsible for the contents of any linked website, or any changes or updates to such websites. Additionally, ULMA and/or the Authorized Distributor shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with YOU using or relying on any software, content, goods or services available on or through any such linked website. ULMA and/or the Authorized Distributor do not control and/or review the linked web-pages and the information provided by third parties.
YOU agree to indemnify and hold ULMA, the Authorized Distributors, their officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of: (a) YOUR User Content or YOUR usage of myULMA; (b) YOUR breach of the Agreement; (c) YOUR unauthorized use of any ULMA-owned Intellectual Property; or (d) YOUR alleged violation of any other rights of a third party.
11. EXCLUSION OF WARRANTIES
myULMA is provided to YOU "AS IS". To the fullest extent allowable by law, ULMA and/or Authorized Distributor do not guarantee or warrant any features, integrity or qualities of myULMA or any Content, or give any undertaking with regard to features, integrity or qualities of myULMA or any Content. Statements and explanations on ULMA websites, Content in promotional content, on ULMA websites and/or ULMA documentation are made for explanatory purposes only. They do not guarantee or warrant features, integrity or qualities of myULMA or any Content. No warranty or undertaking shall be implied by a user from any published ULMA description of or advertisement except to the extent ULMA has expressly confirmed such warranty or undertaking in writing. Warranties are only validly given by the express written confirmation of ULMA's management.
12. LIMITATION OF LIABILITY
ULMA and/or the Authorized Distributor is not be liable or responsible in any way for any User Content posted on or linked from myULMA, including, but not limited to, any errors or omissions in Content, or for any losses or damage of any kind incurred as a result of the use of or reliance on any Content or other content accessed on or through myULMA and and/or made available by a third party.
TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, ULMA AND/OR AUTHORIZED DISTRIBUTOR'S TOTAL RESPONSIBILITY FOR ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, LIQUIDATED DAMAGES OR EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND COURT COSTS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE FULFILLING ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR ARISING OUT OF OR IN CONNECTION WITH A BREACH OF ANY OF ULMA'S REPRESENTATIONS, WARRANTIES AND/OR COVENANTS TO OR WITH YOU UNDER THIS AGREEMENT SHALL BE LIMITED TO THE ANNUAL PRICE OR ROYALTY YOU PAY FOR myULMA. IF NO PRICE HAS BEEN PAID FOR myULMA THE MAXIMUM RESPONSIBILITY AS INDICATED ABOVE SHALL BE SEVEN THOUSAND DOLLARS (CDN $7,000.00).
TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, ULMA, AUTHORIZED DISTRIBUTOR AND THEIR OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARE NOT LIABLE TO ANY USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ULMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE myULMA, AN ULMA WEBSITE, ULMA SOFTWARE, OR ULMA CONTENTS OR ANY INCORRECT FUNCTIONING, DEFECT OR BUG OF THE FOREGOING; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES ARISING OUT OF YOUR USE OR INABILITY TO USE ANY ULMA SOFTWARE, ULMA CONTENTS OR ULMA WEBSITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS, MESSAGES, OR CONDUCT OF ANY THIRD PARTY ON AN ULMA WEBSITE; OR (v) ANY OTHER MATTER RELATING TO AN ULMA WEBSITE OR ULMA CONTENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SAVE AND EXCEPT FOR ANY DAMAGES OR LOSSES CAUSED BY INTENTIAL ACTION OR OMISSION OR GROSS NEGLIGENCE BY ULMA AND/OR THE AUTHORIZED DISTRIBUTOR AND/OR ANY DAMAGES OR LOSSES PAYABLE BY STATUTE FOR PERSONAL INJURY AND DEFECTIVE PRODUCTS.
Subject to any applicable laws, the responsibilities and, consequently, the obligations to compensate that may be derived from the EULA, will expire once two (2) years have elapsed from the date on which event giving raise to the claim takes place.
13. APPLICABLE LAW AND VENUE
The EULA shall be governed by the laws of Ontario and the venue for all disputes between ULMA and YOU in connection with this EULA shall be Ontario.
YOUR confidentiality obligations hereunder shall survive termination of the EULA. Upon any termination of the EULA, or ULMA's written request, YOU must cease use of Confidential Information, and/or myULMA, and return or destroy all Confidential Information in your possession or control.
15. WAIVER AND SEVERABILITY
The failure of ULMA to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. To the extent that any provision in this Agreement shall be found to be invalid or unenforceable the balance of the provisions of this Agreement shall not be affected and ULMA shall update the EULA as provided for in Section 1.
16. ENTIRE AGREEMENT
The EULA represents the entire arrangement between the YOU and ULMA in respect of its subject matter and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to its subject matter notwithstanding any particular conditions agreed in writing between YOU and the Authorized Distributor.
17. EXPORT CONTROL
myULMA may not be accessed or used by any person, country or group against which the European Union and/or the United States of America have instituted sanctions.
Due to technical uncertainties preventing verification of the identity and ultimate point of access by any person attempting to access or use an ULMA website, YOUR access of an ULMA website, including the presentment of any authorized user ID and password, constitutes the express representation that the person attempting access thereunder and/or its employer and/or beneficial owners: (1) are not subject to the abovementioned sanctions; and (2) have not been prohibited from participating in European Union and/or United States of America export transactions. Users shall be fully liable and subject to prosecution to the full extent of the law for any violations of this paragraph.