END USER LICENSE AGREEMENT
This End User License Agreement ("Agreement") is an agreement between you, the licensee hereunder (the "Licensee"), and Mammoth Universal, Inc. ("Mammoth"), regarding the mTusker software. The Licensee and Mammoth may be jointly referred to as the "Parties" herein.
By signing up to use Mammoth’s software, the Licensee is accepting the terms of this Agreement. If these terms are not acceptable, the Licensee should not sign up for, access, install, or use any portion of the Software, in which case no license fee will be charged with regard to Licensee.
The "Software" as defined herein is the mTusker business management software (however accessed, whether through an Internet browser on the web site mtusker.com, mobile device application, or otherwise) and the related software (including any mobile application), documentation, and other materials provided by Mammoth therewith, including, updates, revisions, modifications, additions, corrections and fixes thereto, and all Added Products (as defined below) for which a license is separately acquired by the Licensee.
1. License. During the Term (as defined in Section 11.a below), and for so long as the Licensee is in compliance with all obligations set forth in this Agreement, Mammoth grants the Licensee a non-exclusive, non-transferable, revocable, and limited license to use the Software within its organization, for the internal purpose of managing its own business activities. The Software may only be used by those individuals who are "Authorized Users" of the Licensee. The first user to sign up on behalf of the Licensee is referred to as the "Account Owner." Thereafter, the Licensee may license additional "seats" for additional Authorized Users within the Licensee’s organization through a user page in the Software itself. Each Authorized User shall be bound to the terms of this Agreement. All other use of the Software, and use by any other representative of the Licensee or any other person other than an Authorized User, is strictly prohibited. The Licensee acknowledges that it will be provided with access to and use of the Software online, and that the Licensee is not being granted the right to copy such Software to its own computer systems or devices. Notwithstanding the foregoing, if Mammoth provides a mobile application as part of the Software, that mobile application may be downloaded onto the Licensee’s devices. The mobile application may be downloaded to one device per Authorized User, unless Mammoth agrees otherwise in writing.
2. License Fees. In consideration for this license, the Licensee shall pay to Mammoth the monthly license fees and other payments as may be set forth in that separate Pricing Page in this contract. Pricing may also be found on the mtusker.com website or accessible in the Software itself (the "Pricing Page"). The amount of the monthly license fees will depend on the time of signed contract, the number of Authorized Users within the Licensee’s organization and the number of Added Products, as defined in Section 4 below, that are acquired for the Authorized Users. An initial 30-day free trial period is provided. On or before the end of the free trial period, the Licensee will be required to provide Mammoth with its credit card billing information. Licensee authorizes Mammoth to bill that credit card in advance for each month’s license fees on the first day of each month. If there are new Authorized Users added during any month, the charges for them will commence at the start of the month after which they are added. Any changes in relation to the Licensee’s credit card must be communicated to Mammoth at least seven days in advance of the due date of a fee or other payment. Upon 30 days notice to Licensee, Mammoth may suspend or terminate the Licensee’s license, use of, and access to the Software at any time it does not have valid credit card information on file with Mammoth. Any fees or other payments not made by the applicable due date will accrue interest at the rate of the lower of 1.5 percent of the outstanding balance per month or the maximum rate allowed at law. The fees set forth in the Pricing Page are subject to change by Mammoth. Mammoth may make the changes by modifying the Pricing Page or the pricing information in the Software itself, or by otherwise notifying the Licensee. Any price changes made will go into effect at the start of the next coming Renewal Term (as defined in Section 11.a), as long as the changes are made by Mammoth at least 45 days in advance of the start of that Renewal Term. mTusker price increases will reflect a reasonable increase for inflation, growth, value, and market position; mTusker will not raise fees in a manner that could reasonably be construed as price gouging. Any contract terms including pricing will be honored for the length of the contract.
3. Updates. The license grants the Licensee the right to use the Software during the Term as initially provided to the Licensee and any updated versions of the same Software that are released by Mammoth, for so long as the applicable ongoing license fees and other required amounts are paid.
4. Added Products. Mammoth may provide additional units of or ancillary products of the Software providing additional or increased capabilities or functions ("Added Products") from time to time. The Licensee has the option to acquire a license to such Added Products as part of the Software for an additional license fee or other payment and terms, which may be set forth in the Pricing Page or a separate page or documentation. Mammoth shall have the authority to designate whether a particular development or item is an updated version of the Software (which is included in the original license under Section 3 above), or an Added Product (which must be separately licensed as specified in this Section), in its discretion. This Agreement will apply to any Added Products licensed by the Licensee, which shall be deemed part of the Software.
5. Software Operation Assistance. On its mtusker.com web site or another location it designates, Mammoth will provide online help resources for the operation of the Software. In the event that the online resources do not adequately resolve questions or issues that the Licensee may have, Mammoth will make its representatives available by telephone and/or e-mail, upon the reasonable request of the Licensee, to provide guidance and discuss matters related to the Software and its operation. This assistance will be subject to the availability of Mammoth’s representatives. Over the Term, up to 20 total hours of assistance from Mammoth’s representatives by telephone, e-mail, or otherwise will be provided without additional charge above and beyond the license fees for the Software. Any additional assistance beyond this will be charged to Licensee by Mammoth at the consulting rate set forth on the Pricing Page, or elsewhere on the mtusker.com website or Software.
6. Service and Downtime. The Licensee acknowledges that some or all of the Software will be stored on servers of Mammoth or its third party hosting companies, and therefore the Licensee’s use of the Software requires Internet connectivity and connection to those servers for operation. The Software may not be compatible with or available for all computer systems and devices. The Licensee should visit mtusker.com or contact Mammoth to determine specific requirements for systems and devices using the Software, which requirements may change from time to time. Mammoth will use commercially reasonable efforts to make the Software available at all times through its servers, to restrict maintenance to occur during non-peak hours, and to provide the Licensee with notification of scheduled downtime. How much notice will you give us? The Licensee agrees that occasional downtime, updates and maintenance are sometimes required during its business hours, which may block access or impair responsiveness and accessibility. The Licensee acknowledges that this downtime for the Software, including any Added Products, may be significant during the period of beta testing and evaluation thereof. The Licensee further agrees that the Software may also be unavailable due to emergency downtime to protect the system, back-up data, or because of force majeure events. Availability of the Software at all times is subject to the Licensee’s maintenance of its interface and connectivity to the Internet. Where is SLA?
7. Licensee Actions. Defects due to the following by the Licensee are not considered downtime under this Agreement, and the Licensee acknowledges that these events may cause further unavailability or impairment of the Software: (i) negligence, errors, misuse, modification or damage to the Software; (ii) failure to use defect corrections, enhancements, updates or workarounds; (iii) use combined with products, information, third-party software or an interface not provided by Mammoth; (iv) defects in quality or integrity of data from other systems, or in hardware, software or equipment not part of the Software, or which is not operating according to manufacturer specifications; and (v) failure to maintain proper connectivity. Any actual costs to Mammoth for investigation and repair of issues that relate to the foregoing issues, including a reasonable fee for its employees’ and agents’ time, shall be paid by the Licensee.
8. The Licensee's Data; Security.
a. Any data of the Licensee entered into the Software will remain the property of the Licensee, but the Licensee grants Mammoth a license to access, copy, distribute, store, transmit, and reformat the Licensee’s data solely as required for the sole purpose of providing the services to the Licensee under this Agreement. Mammoth and its third party hosting companies follow commercially reasonable security measures, which may include firewalls, virus screening, logon IDs, passwords, intrusion detection, periodic reporting, security patches and virus definitions. Mammoth, itself or through its third party hosting companies, routinely backs up information, and archives and holds data in secure storage. Internal security policies of Mammoth, or any hosting company it engages, will address data retention and destruction to balance privacy, integrity, access controls, storage, cost management, and legal requirements. Loss of the Licensee’s data may occur and the Licensee should provide for additional back-up storage of its original data. The Licensee acknowledges and agrees that no method of transmission over the Internet, or method of electronic storage, is 100 percent secure. Therefore, while Mammoth strives to use commercially acceptable means to protect the Licensee’s data, Mammoth cannot guarantee or warrant its absolute security but will make reasonable and industry-accepted efforts to maintain security. Further, because data from the Licensee and Mammoth’s other customers may be stored on the same servers, there is a possibility that the data of certain customers, including the Licensee, could "leak" into or be copied into the data of another customer and vice versa. While Mammoth strives to use commercially acceptable means to prevent this from happening, Mammoth cannot guarantee or warrant that it will not happen. In addition to the data entered by the Licensee into the Software, Mammoth may store information on its or its hosting companies servers regarding the Licensee’s usage of the Software, including common information or selections made by the Licensee, to expedite the Licensee’s usage of the software.
b. Data may be stored on servers located in the United States or any other country in which Mammoth or its third party hosting companies maintain facilities. The Licensee consents to any such transfer of information outside of the Licensee’s country.
c. Mammoth may access and/or disclose the Licensee’s data if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on Mammoth; (b) protect and defend Mammoth’s rights or property, including to the Software; or (c) act under exigent circumstances to protect the personal safety of users of the Software or the public.
9. Specific Prohibited Uses. The Licensee, each Authorized User, and any other party acting on the Licensee’s behalf may not (i) use the Software in any manner that could damage, disable, overburden, or impair the Software or interfere with a third party’s use of the Software; (ii) modify, decompile, disassemble or otherwise reverse engineer the Software; (iii) prepare derivative works of the Software or any portion thereof; (iv) copy or duplicate the Software, or allow anyone else to do so, except as necessary to access the Software or install any mobile application included in the Software; (v) download any portion of the Software from the Internet to its computer systems and devices, except that any mobile application offered by Mammoth as part of the Software may be downloaded by the Licensee; (vi) remove any product identification or labeling from any element of the Software; (vii) permit any party other than an Authorized User access or use the Software; or (viii) use the Software for any illegal purpose or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, obscene, or is otherwise objectionable or reflecting negatively on Mammoth. The Licensee is solely responsible for protecting its unique username and password for accessing the Software and will be responsible for all activities performed under that user account.
10. Certification and Audit. Upon the request of Mammoth, the Licensee agrees to provide a declaration signed by an authorized representative certifying the actual number of users of the Software and the sites where the Software is being used. Upon the request of Mammoth, a representative of Mammoth shall be permitted to audit and visit the Licensee’s premises to inspect its use of the Software to confirm that it is complying with this Agreement.
a. The term for this Agreement will be 12 months, and will thereafter automatically renew for six-month periods (the "Renewal Terms"), unless earlier terminated in accordance with this Agreement. As described in Section 2, the Licensee authorizes Mammoth to begin billing the Licensee's credit card for each Renewal Term, unless the Licensee has provided 30 days' advance notice of termination prior to the expiration date of the preceding Initial Term or Renewal Term, pursuant to Section 11.b(i) below. The Initial Term and all successive Renewal Terms that this license remains in effect shall be referred to, collectively, as the "Term." The Term for the license will be deemed to commence on the date that the account for the Account Holder is created by Mammoth. The term for any added Authorized Users of the Licensee will be tied to the Licensee's Term, and the licenses for individual Authorized Users may only be terminated at the same times and circumstances that apply for termination of this Agreement as set forth in Section 11.b(i) below.
c. If the Licensee chooses to terminate at will pursuant to Section 11.b(i) above or Mammoth chooses to terminate for the Licensee’s breach pursuant to Section 11.b(ii) above, where such termination becomes effective prior to the end of any Renewal Term, the Licensee shall be obligated to pay Mammoth the full remaining license fees and any other charges that would have been payable over the remainder of that Renewal Term had it not been terminated, plus an administrative fee of $250.00. These amounts may be charged to the Licensee’s credit card immediately upon the termination. This payment shall be in addition to, and not in lieu of, any other legal or equitable rights to which Mammoth may be entitled based on a breach by the Licensee if Mammoth is terminating pursuant to Section 11.b(ii). If Mammoth chooses to terminate this Agreement at will pursuant to Section 11.b(i) or for those reasons set forth in Section 11.b(iii) above, the Licensee shall be obligated to pay only those license fees and any other charges that have come due prior to the date of the termination. In no circumstances will the Licensee be entitled to receive any refund of the license fee or any other amounts paid to Mammoth prior to the termination of this Agreement. Every section of this Agreement that by its terms is intended to survive expiration and/or termination of the license, including but not limited to Sections 8.c, 9, 11.c, 11.d, 12, 13, 14, 15, 16, 17, 18, and 24 shall survive the expiration or termination of the license for any reason. Raw Data is the property of the Licensee and will be returned upon termination of this agreement. Otherwise, following termination, the Parties shall have no further obligations to each other.
d. Upon termination of the license, Mammoth may immediately terminate the Licensee’s access to and use of the Software. The Licensee shall delete from all of the Licensee’s computer systems and devices any mobile application version of the Software installed thereon. The Licensee shall no longer be entitled to access or use the Software for any reason, including to retrieve any data entered into the Software. The Licensee acknowledges that such data may be destroyed upon the termination of this Agreement.
12. Ownership of Intellectual Property Rights. The Software is proprietary to Mammoth and Mammoth reserves all rights to the Software not expressly granted herein. This Agreement does not grant the Licensee an ownership interest in or to the Software. All right, title, and interest in and to the Software, including all associated intellectual property rights (such as all patent rights, copyrights, trademarks, service marks, related goodwill, and confidential and proprietary information rights) in the Software, are and shall remain with Mammoth. The Software does not constitute a "work made for hire" under 17 U.S.C. ˇě 101. The Software is protected by trade secret laws, copyright laws, and international copyright treaties, as well as other intellectual property laws and treaties. The Licensee shall not undertake to patent, copyright, or otherwise assert proprietary rights to the Software or any portion thereof. Mammoth represents that it has the right to license the Software to the Licensee. Nothing contained in this Agreement shall be deemed to give the Licensee any right, title, or interest in Mammoth’s name, trademarks, service marks, logos, or other brand identifications. If the Licensee develops or improves, or suggests developments or improvements for, any aspect of the Software or any other intellectual property of Mammoth, the development or improvement will inure to the benefit of Mammoth, will be owned by Mammoth as a part of the Software and its intellectual property, and may, in Mammoth’s sole determination, be made available to other licensees of Mammoth.
13. Confidentiality. The Licensee acknowledges that the source code, techniques, algorithms, and processes contained in the Software constitute valuable trade secrets and/or confidential information of Mammoth, and the Licensee agrees to maintain the confidentiality of the Software and, in particular, to restrict access to and use of the Software to the Licensee and the Authorized Users of Licensee who agree to use the Software in accordance with the terms hereof by accepting this Agreement. The Licensee shall keep confidential and use its best efforts to prevent and protect the Software from unauthorized disclosure or use. The Licensee shall immediately inform Mammoth in writing if any employee or agent of the Licensee violates the terms and conditions of this Section, or if the Licensee learns of any actual or possible unauthorized disclosure of the Software or any portion thereof.
14. Prohibition on Transfer and Resale. Neither the Licensee nor any other party acting on the Licensee’s behalf may transfer, resell, distribute, rent or otherwise sub-license the Software, in its original or any modified form, alone or in a manner incorporated into any other product or software. Any attempt to do so is deemed void. The licenses for "seats" are not transferable, and the "Account Holder" and other "Authorized Users" for the Licensee may not be changed unless agreed in writing by Mammoth.
15. Limited Warranty. THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE." THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE. MAMMOTH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE REGARDING THE SOFTWARE; AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING (WITHOUT LIMITATION) ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED BY MAMMOTH. MAMMOTH DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. MAMMOTH DOES NOT WARRANT THAT THE SOFTWARE, INCLUDING ANY MOBILE APPLICATION INCLUDED IN THE SOFTWARE, WILL BE COMPATIBLE WITH THE LICENSEE’S COMPUTER SYSTEMS OR DEVICES.
16. Limitation of Liability. IN NO EVENT SHALL MAMMOTH OR ITS AGENTS OR EMPLOYEES BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, IN TORT, IN NEGLIGENCE, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF USE, INFORMATION, GOODWILL, PROFIT, WORK STOPPAGE, DATA, BUSINESS OR REVENUE, OR FOR UNAUTHORIZED DISCLOSURE OF DATA) ARISING OUT OF THE USE OF, OR INABILITY TO USE THE SOFTWARE, OR ARISING OUT OF ANY DEFECT IN ANY ASPECT OF THE SOFTWARE, EVEN IF MAMMOTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. MAMMOTH IS ALSO NOT LIABLE FOR DAMAGE DONE TO OR CAUSED BY THIRD PARTY PRODUCTS USED IN CONJUNCTION WITH THE SOFTWARE. IN ANY EVENT, THE ENTIRE LIABILITY OF MAMMOTH FOR ANY MATTER WITH RESPECT TO THE SOFTWARE OR THIS AGREEMENT SHALL BE LIMITED TO THE LICENSE FEE PAID BY THE LICENSEE FOR THE SOFTWARE DURING THE 18 MONTHS PRIOR TO THE LAST OF THE EVENTS CAUSING THE ALLEGED DAMAGE. LICENSEE IS LIMITED IN LIABILITY EXCEPT IN ANY CASE OF NEGLIGENCE, FRAUD, MALFEASANCE, OR ILLIGAL ACTIVITY, OR ACTIVITIES ARISING OUR OF OR IN CONNECTION WITH THE USE OR MISUSE OF THE SOFTWARE UNDER THIS AGREEMENT.
17. Indemnification. The Licensee agrees to indemnify, defend, and hold Mammoth and its subsidiaries and affiliated companies and their shareholders, officers, directors, agents, employees and attorneys, harmless for any losses, claims, or damages, including without limitation, reasonable attorney’s fees, however arising, including without limitation, through negligence, arising out of or in connection with the use or misuse of the Software or any breach of this Agreement. mTusker agrees to indemnify the Licensee for any claims or damages, except those arising through negligence, fraud, malfeasance, or illegal activity, or activities arising out of or in connection with the use or misuse of the Software or any breach of this Agreement.
18. Remedies. This should be mutual regarding our data. If the Licensee attempts to use, copy, license or convey the Software, the confidential information therein, or any portion thereof in a manner contrary to the terms of this license or in derogation of Mammoth’s proprietary rights, whether as explicitly herein stated, determined by law, or otherwise, Mammoth shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action, the Licensee hereby acknowledging that other remedies are inadequate.
19. Amendments. NONE LISTED
20. Taxes. The Licensee is responsible for all taxes imposed in connection with the license to the Licensee of Software or services or which Mammoth may incur in respect of the license of the Software (except taxes imposed on Mammoth’s income) including all import duties, customs fees, levies or imposts, and all sales, use, value added, gross receipts or other taxes of any nature and any penalties, interest and collection or withholding costs associated with any of the foregoing items. All such amounts are in addition to other amounts payable hereunder.
21. Force Majeure. Mammoth shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from an act of force majeure, including acts of God, war, riot, natural disaster, terrorism, or any other causes beyond the reasonable control of Mammoth; provided, that, in order to be excused from delay or failure to perform, Mammoth must act diligently to remedy the cause of such delay or failure.
23. Miscellaneous. Any provision of this Agreement which is unenforceable or invalid or the inclusion of which would affect the validity, legality or enforcement of this Agreement shall be modified so as to conform to applicable law or if the same cannot be modified to conform with applicable law, shall be of no effect, but all remaining provisions of this Agreement shall remain in full force and effect. Each of the Parties hereto is an independent contractor engaged in the operation of its own respective business and neither Party shall have any authority to enter into any contract, assume any obligations or make any warranties or representations on behalf of the other party. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Upon written notice to the Licensee and at no additional cost to Mammoth, Mammoth may assign or transfer this Agreement, and any or all of Mammoth’s or Mammoth’s rights and obligations hereunder, to any party. The obligations of Mammoth under this Agreement run only to the Licensee but not to its customers or any other persons. Under no circumstances shall any affiliate, customer of the Licensee or any other person be considered a third party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement.
24. Choice of Law; Forum Selection. The Parties hereby agree that this Agreement and the license shall be interpreted under and governed by the laws of the State of Colorado, U.S.A., without reference to its conflict of law rules. Except for actions for injunctive relief under Section 18, which Mammoth may bring in a court of competent jurisdiction, any and all controversies, disputes or claims between Mammoth, its subsidiaries and affiliated companies or their shareholders, officers, directors, agents, employees and attorneys (in their representative capacity); and the Licensee arising out of or related to this Agreement or the validity hereof shall be submitted for arbitration on the demand of any involved party. Such arbitration proceedings shall be conducted in Denver, Colorado, will be submitted to the American Arbitration Association ("AAA"), and will be heard by one arbitrator in accordance with the then current rules of AAA applicable to commercial arbitration. Any arbitration award shall be based on established law and shall not be made on broad principles of justice and equity. All jurisdictional issues will be decided by the arbitrator. The prevailing party in any action to enforce any provision of this Agreement shall be entitled to recover all costs and attorneys’ fees incurred in connection with the action.
25. Third Party Web Sites and Software. The Software may contain links to software, applications, and web sites of third parties not controlled or operated by Mammoth, including those of other private entities and organizations. Licensee acknowledges and agrees that when it follows such a link, it is then subject to the terms for such new software, application, or web site. Any links are provided solely for the Licensee’s convenience, and Mammoth does not endorse the content or operator of any third party software, application, or web site. Further, content of third parties, including advertisements and hyperlinks, may appear on the Software. Mammoth makes no warranty or representation of any kind as to the accuracy, currency, or completeness of any information contained in any linked third party software, application, or web site or the content therein, and the Licensee agrees that Mammoth will have no liability for any damages or injuries of any kind arising from the operation, content, or information on such software, application, or web site.
The Licensee may acknowledge its acceptance of the terms of this Agreement by clicking that it accepts this Agreement when signing up to use the Software. Otherwise, the Licensee should not sign up for, access, install, or use any portion of the Software.
If the Licensee is a business entity, then the individual accepting on its behalf represents that it has authority to bind such entity to this Agreement.