END USER LICENSE AGREEMENT
This StockpileReport.com End User License Agreement ("Agreement") is legally binding agreement between URC
Ventures, Inc., a Delaware corporation, doing business as StockpileReports.com ("StockpileReports") and the legal
entity you represent ("Customer"). If you use or are engaging in activities under this Agreement for a business, company,
or corporate entity, whether as an employee or contractor, the terms and conditions of this Agreement are binding on both
you as an individual as well as such company.
BEFORE YOU CLICK THE "I ACCEPT AND AGREE" BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY
READ THE TERMS OF THIS AGREEMENT. BY CLICKING ON THE "I ACCEPT AND AGREE" BUTTON, YOU ARE
REPRESENTING THAT YOU HAVE AUTHORITY TO BIND THE LEGAL ENTITY ON WHOSE BEHALF YOU ARE
ACTING AND ARE AGREEING TO BIND THAT ENTITY AS A PARTY TO THIS AGREEMENT. IF YOU CANNOT
MAKE THE FOREGOING REPRESENTATION, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT,
CLICK THE "DECLINE" BUTTON.
This Agreement contains the terms by which StockpileReports will provide to Customer: (a) access to StockpileReports's
proprietary mobile application for the collection of stockpile-related data; (b) subscription access to StockpileReports's
proprietary web-based platform for the processing of data and the delivery of reports ("StockpileReports Platform"); and
(c) services to support Customer's use of the StockpileReports Platform. The parties agree as follows:
- "Customer Systems" means the computers, devices, software applications and other items of hardware or software owned or controlled by Customer.
- "Documentation" means StockpileReports-provided user documentation, in all forms, relating to the
StockpileReports Platform, StockpileReports Web Portal and Mobile Application (e.g., user manuals, on-line help files).
- "Effective Date" means the Effective Date specified in the Order Form.
- "Enterprise User" means an employee or independent contractor of Customer
- "Mobile Application" means the mobile application developed by StockpileReports for use by Enterprise Users
to input certain data, collect image data and transmit the data to the StockpileReports Platform.
- "Order Form" means the order form prepared by StockpileReports and signed by you detailing certain terms
(such as volume of reports and pricing) regarding your use of the StockpileReports Platform.
- “SLA” means StockpileReports’ service level agreement, located at www.stockpilereports.com/sla.
- "Stockpile Data" means all data that is collected by an Enterprise User using the Mobile Application and
transmitted to the StockpileReports Platform, including all data manually entered by the Enterprise User, all image data
captured using the Mobile Application and any geolocation data related thereto recorded by an Enterprise User's mobile
- "Stockpile Report" means a report that contains aggregate volume, tonnage, and location information that is
produced by the StockpileReports Platform and calculated using Stockpile Data.
- "Support Services" means the support services described in the SLA.
- "StockpileReports Technology" means, generically or together, the StockpileReports Platform,
StockpileReports Web Portal, Mobile Application and Documentation.
- “StockpileReports Web Portal” means the web-based management console accessible by Customer using an Internet browser and access credentials. The StockpileReports Web Portal is located at the URL: https://service.stockpilereports.com.
- USE OF THE STOCKPILEREPORTS PLATFORM
- Access Credentials. Subject to the terms and conditions of this Agreement, StockpileReports will: (a) provide to
Customer access credentials that will allow Customer to log into the StockpileReports Web Portal and access the
StockpileReports Platform; and (b) make the StockpileReports Platform available to Customer during the Term. Customer
will not provide the access credentials to any third party, and will not, directly or indirectly, permit or allow any
unauthorized access to or use of any StockpileReports Technology.
- Mobile Application. Customer may permit Enterprise Users to install the Mobile Application on their mobile
devices, operate the Mobile Application for the collection of Stockpile Data on behalf of Customer and transmit the
Stockpile Data to the StockpileReports Platform. Customer is responsible for ensuring the each such Enterprise User is
qualified and fully trained to operate the Mobile Application. Customer acknowledges that the Mobile Application is
currently only compatible with the Apple iOS operating system.
- Access to the StockpileReports Platform. Subject to the terms and conditions of this Agreement,
StockpileReports grants to Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable right
during the Term to access and use the StockpileReports Platform solely to: (a) transmit Stockpile Data from the Mobile
Application to the StockpileReports Platform; (b) purchase Stockpile Reports for viewing on and downloading from the
StockpileReports Web Portal; and (c) manage the administrative functions of the StockpileReports Web Portal (e.g., add
or remove authorized Enterprise Users), in each case, solely in connection with Customer's internal business operations.
Customer is fully responsible for any and all Enterprise Users' use of or access to the StockpileReports Technology,
whether or not authorized by Customer.
- License to Stockpile Reports.
(a) Downloads. Subject to the terms and conditions of this Agreement, during the Term, StockpileReports
hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable license during the Term, to
access and download copies of the purchased Stockpile Reports from the StockpileReports Web Portal to the Customer
(b) Copies. Subject to the terms and conditions of this Agreement, StockpileReports hereby grants to
Customer a perpetual, irrevocable (subject to Section 4.2 for a material breach by Customer), worldwide, non-exclusive,
non-transferable and non-sublicenseable license to make reproductions of the Stockpile Reports downloaded by
Customer during the Term solely in connection with Customer's internal business operations.
- Use of the Documentation. Subject to the terms and conditions of this Agreement, StockpileReports grants to
Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable license during the Term to reproduce,
without modification, and internally use a reasonable number of copies of the Documentation solely in connection with
Customer's permitted use of the StockpileReports Technology in accordance with this Agreement.
- Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by
applicable law, Customer will not, and will not permit or authorize third parties to: (a) modify, reproduce, translate,
enhance, disassemble, decompile, reverse engineer or create derivative works of any portion of the StockpileReports
Technology; (b) make rent, lease, or otherwise permit third parties to use any portion of the StockpileReports Technology;
(c) use any portion of the StockpileReports Technology to provide services to third parties (e.g., as a service bureau); nor
(d) circumvent or disable any security or other technological features or measures of any portion of the StockpileReports
Technology. Customer shall not, and shall not permit any Enterprise User to, use the Mobile Application to collect data on
or about the premises or property of any third party or to obtain analysis or Stockpile Reports on any third party's business
operations and Customer hereby agrees never to transmit any such data to the StockpileReports Platform.
- Protection Against Unauthorized Use. Customer is responsible for all activity associated with any of its
StockpileReports Platform accounts (both through the Mobile Application and the StockpileReports Web Portal).
Customer will use its best efforts to prevent any unauthorized use of the StockpileReports Technology and immediately
notify StockpileReports in writing of any unauthorized use that comes to Customer's attention. If there is unauthorized
use by anyone who obtained access to the StockpileReports Technology directly or indirectly through Customer,
Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist
with any actions taken by StockpileReports to prevent or terminate unauthorized use of any StockpileReports Technology.
- Compliance with Laws. Customer's use of the StockpileReports Technology must be in compliance with all
applicable laws and regulations, and Customer will refrain from any unethical conduct or any other conduct that my tend
to damage the reputation of StockpileReports.
- No W arranties. Customer will not make or publish any representations, warranties, guarantees, or
commitments on behalf of StockpileReports concerning any matter whatsoever.
- Support Services. For so long as Customer is current with its payment of all applicable fees specified in an
Order Form or otherwise due under this Agreement, StockpileReports will provide Support Services in accordance with
- Error Reporting. Customer will document and promptly report all detected errors in the StockpileReports
Technology to StockpileReports in accordance with the SLA. Customer will assist StockpileReports with recreating and
diagnosing each error. Customer will provide StockpileReports with reasonable access to all necessary personnel to
answer questions regarding errors and other problems reported by Customer.
- Error Corrections. StockpileReports will use reasonable efforts to correct performance errors affecting
Customer's use of the StockpileReports Technology with a level of effort commensurate with the severity of the error and
in accordance with the SLA.
- Exclusions. Unless otherwise expressly agreed to by StockpileReports in a separate written agreement, the
Support Services do not include: (a) visits to Customer's site; (b) any work with or relating to any third party equipment or
software, including the Customer Systems; or (c) consultation with Enterprise Users.
- TERM AND TERMINATION
- Term. Unless this Agreement is terminated earlier in accordance with the terms hereof, this Agreement will
commence upon the Effective Date and continue for the initial subscription term specified in the Order Form (or for 1 year
if none is specified) ("Initial Term") and will automatically renew one year at a time unless a party notifies the other party
in writing of its intent to not renew this Agreement at least 60 days before the start of a renewal year (each, a "Renewal
Term" and, together with the Initial Term, the "Term").
- Notice of Material Breach or Default. If either party commits a material breach or default in the performance of
any of its obligations under this Agreement, then the other party may give the defaulting party written notice of the material
breach or default (including a statement of the facts relating to the material breach or default, the provisions of this
Agreement that are in material breach or default, and the action required to cure the material breach or default) and of the
non-defaulting party's intention to terminate the Agreement pursuant to Section 4.3 if the material breach or default is not
cured within 30 days after the defaulting party's receipt of that notice (or a later date as may be specified in that notice).
Without limiting the preceding sentence, any failure by Customer to timely pay to StockpileReports any amounts owing
under this Agreement will constitute a material breach of this Agreement.
- Notice of Termination. If the defaulting party fails to cure a material breach or default specified in any notice
under Section 4.2 within 30 days after receipt of notice (or a later date as may be specified in that notice), then the non-
defaulting party may terminate this Agreement by giving the defaulting party written notice of termination. If Customer
fails to timely pay any fees due under this Agreement, StockpileReports may, without limitation to any of its other rights or
remedies, suspend Customer's access to the StockpileReports Technology and the performance of any Service until it
receives all amounts due.
- Termination for Convenience. Customer may terminate this Agreement at any time for any reason or no reason
by providing StockpileReports with 30 days advanced written notice of its decision to terminate this Agreement for
- Post-Termination Obligations. If this Agreement is terminated for any reason: (a) Customer will pay to
StockpileReports any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all
liabilities accrued prior to the effective date of the termination will survive; (c) Customer will provide StockpileReports with
a written certification signed by an authorized Customer representative certifying that all copies of the Mobile Application
have been permanently deleted from the Customer Systems and all Enterprise Users' mobile devices and copies of
Documentation in Customer's possession have been destroyed; and (d) Sections 1, Error! Reference source not
found., 4.4, 5, 6.3, 8, 11, 10, and 11 will survive termination.
- INTELLECTUAL PROPERTY
- Ownership; Data. StockpileReports grants to Customer a limited right to access and use the StockpileReports
Technology under this Agreement. Customer will not have any rights to the StockpileReports Technology except as
expressly granted in this Agreement. StockpileReports reserves to itself all rights not expressly granted to Customer
under this Agreement. Customer understands and agrees that StockpileReports may use and disclose, in an aggregated
format, any and all data that is derived or collected from Customer's use of the StockpileReports Technology ("Data") for
any purpose, if that aggregated data would not reasonably be identifiable as originating with or associated with Customer
or any Enterprise User. StockpileReports is the sole owner of all Data.
- Feedback. Customer grants to StockpileReports a royalty-free, fully paid-up, nonexclusive, perpetual,
irrevocable, worldwide, transferable, sublicenseable license to use, copy, modify, or distribute, including by incorporating
into the StockpileReports Technology, any suggestions, enhancement requests, recommendations or other feedback
provided by Customer or Enterprise Users.
- WARRANTIES AND DISCLAIMER
- Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly
executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with
its terms; (b) no authorization or approval from any third party is required in connection with such party's execution,
delivery, or performance of this Agreement; (c) the execution, delivery, and performance of this Agreement does not
violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is
otherwise bound; and (d) it will comply with all applicable laws in connection with this Agreement.
- Customer Warranties. Customer represents and warrants that: (a) the exercise by StockpileReports of the
rights granted under this Agreement to the Customer Systems as provided by Customer and the collection, transmission,
storage and use of the Stockpile Data collected by Customer or any Enterprise User does not, and will not, infringe any
intellectual property rights, privacy rights, or other rights of any third party or give rise to any obligation for the payment of
any sums to any third party by StockpileReports or any of its affiliates; (b) the Customer Systems will comply with all
reasonable requirements communicated in writing to Customer by StockpileReports; and (c) the Customer Systems will
not, when accessed or used by StockpileReports in accordance with this Agreement, subject StockpileReports to any
liability or causes StockpileReports to violate any law, rule, or regulation or guideline.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS
SECTION 6, STOCKPILEREPORTS MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND
WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY
MATTER WHATSOEVER. STOCKPILEREPORTS EXPRESSLY DISCLAIMS ALL IMPLIED W ARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NONINFRINGEMENT.
STOCKPILEREPORTS DOES NOT WARRANT THAT THE STOCKPILEREPORTS TECHNOLOGY
OR STOCKPILE REPORTS ARE OR WILL BE ERROR-FREE OR THAT OPERATION OF ANY STOCKPILEREPORTS
TECHNOLOGY WILL BE SECURE OR UNINTERRUPTED. STOCKPILEREPORTS EXERCISES NO CONTROL OVER
AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CUSTOMER'S USE OF THE
STOCKPILEREPORTS TECHNOLOGY, INCLUDING ITS (AND THE ENTERPRISE USERS') USE OF THE MOBILE
APPLICATION AND THE COLLECTION OF STOCKPILE DATA.
- INTELLECTUAL PROPERTY INFRINGEMENT
- Infringement Defense. StockpileReports will defend Customer and its employees, directors, agents, and
representatives ("Customer Indemnified Parties") from any actual or threatened third party claim that the
StockpileReports Technology infringes or misappropriates any U.S. patent issued as of the Effective Date or any copyright
or trade secret of any third party during the Term if: (a) the applicable Customer Indemnified Party gives StockpileReports
prompt written notice of the claim; (b) StockpileReports has full and complete control over the defense and settlement of
the claim; (c) the applicable Customer Indemnified Party provides assistance in connection with the defense and
settlement of the claim as StockpileReports may reasonably request; and (d) the applicable Customer Indemnified Party
complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any
- Infringement Indemnification. StockpileReports will indemnify each of the Customer Indemnified Parties against:
(a) all damages, costs, and attorneys' fees finally awarded against any of them in any proceeding under Section 7.1; (b)
all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by any of them in connection with the
defense of such proceeding (other than attorneys' fees and costs incurred without StockpileReports's consent after
StockpileReports has accepted defense of such claim); and (c) if any proceeding arising under Section 7.1 is settled, all
amounts to any third party agreed to by StockpileReports in settlement of any such claims.
- Mitigation of Infringement Action. If Customer's use of the StockpileReports Technology is, or in
StockpileReports's reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding
arising under Section 7.1, then StockpileReports will either: (a) procure the continuing right of Customer to use the
StockpileReports Technology; (b) replace or modify the StockpileReports Technology in a functionally equivalent manner
so that it no longer infringes; or if, despite its commercially reasonable efforts, StockpileReports is unable to do either (a)
or (b), StockpileReports will (c) terminate this Agreement and refund to Customer all pre-paid, unused subscription fees.
- Exclusions. StockpileReports will have no obligation under this Section 7 for any infringement to the extent that
it arises out of or is based upon: (a) the combination, operation, or use of the StockpileReports Technology if such
infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or
specifications required by or provided by Customer, if the alleged infringement would not have occurred but for such
designs, requirements, or specifications; (c) use of the StockpileReports Technology outside of the scope of the rights
granted to Customer; (d) Customer's failure to use the latest release of any StockpileReports Technology or to comply
with instructions provided by StockpileReports, if the alleged infringement would not have occurred but for such failure; or
(e) any modification of any portion of the StockpileReports Technology not made by StockpileReports where such
infringement would not have occurred absent such modification. Customer will reimburse StockpileReports for any costs
or damages that result from these actions.
- Exclusive Remedy. This Section 7 states StockpileReports's sole and exclusive liability, and Customer's sole
and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by any portion of
the StockpileReports Technology.
- INDEMNIFICATION BY CUSTOMER
- Defense by Customer. Customer will defend StockpileReports from any actual or threatened third party claim
arising out of or based upon Customer's use of the StockpileReports Technology or Customer's breach of any of the
provisions of this Agreement, excluding any claims for which StockpileReports is responsible under Section 7.
StockpileReports will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control
over the defense and settlement of the claim; (c) assist Customer with the defense and settlement of the claim as
Customer may reasonably request and at Customer's expense; and (d) comply with any settlement or court order made in
connection with the claim.
- Indemnification by Customer. Customer will indemnify StockpileReports against: (a) all damages, costs, and
attorneys' fees finally awarded against StockpileReports in any proceeding under Section 8.1; (b) all out-of-pocket costs
(including reasonable attorneys' fees) reasonably incurred by StockpileReports in connection with the defense of such
proceeding (other than attorneys' fees and costs incurred without Customer's consent after Customer has accepted
defense of such claim); and (c) if any proceeding arising under Section 8.1 is settled, Customer will pay any amounts to
any third party agreed to by Customer in settlement of any such claims. This Section 8.2 will apply regardless of any
insurance coverage held by StockpileReports or any affiliate.
- LIMITATIONS OF LIABILITY
- Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY
FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO
THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST
PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES
- Cap on Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT,
UNDER NO CIRCUMSTANCES WILL EITHER PARTY'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR
RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE
FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR
OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO STOCKPILEREPORTS UNDER THIS
AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM
(DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF W ARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE
RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING
OFFERED BY STOCKPILEREPORTS TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE
BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL
OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- Definition. "Confidential Information" means any trade secrets or other information of a party, whether of a
technical, business, or other nature (including, without limitation, information relating to a party's technology, software,
products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other
affairs), that is disclosed to a party during the Term and that such party knows or has reason to know is confidential,
proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information
that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this
Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential
Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use
or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
- Restricted Use and Nondisclosure. During and after the Term, each party will: (a) use the other party's
Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party's Confidential
Information to a third party unless the third party must access the Confidential Information to perform in accordance with
this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to
the terms contained in this Section 10; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure,
the other party's Confidential Information to the same extent (but using no less than a reasonable degree of care) that it
protects its own Confidential Information of a similar nature.
- Required Disclosure. If either party is required by law to disclose the Confidential Information or the terms of
this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and
assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
- Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party
will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the
foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this
Agreement or properly perform in accordance with this Agreement.
- Relationship. StockpileReports is an independent contractor (and not an agent or representative of Customer)
in the performance of this Agreement. This Agreement will not be interpreted or construed as: (a) creating or evidencing
any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise
obligation or liability on either party; or (c) prohibiting or restricting StockpileReports's performance of any services for any
third party or the provision of products to any third party.
- Assignability. Customer may not assign its right, duties, or obligations under this Agreement without
StockpileReports's prior written consent. Any direct or indirect change of control of Customer via a merger,
reorganization, consolidation or sale of all or substantially all of Customer's assets or equity securities in one or a series of
related transactions will be deemed to be an "assignment" for the purposes of this Section 11.2. If consent is given, this
Agreement will bind Customer's successors and assigns. Any attempt by Customer to transfer its rights, duties, or
obligations under this Agreement except as expressly provided in this Agreement is void. StockpileReports may assign
this Agreement without Customer's consent.
- Subcontractors. StockpileReports may utilize one or more subcontractors or other third parties to perform its
duties under this Agreement as long as StockpileReports remains responsible for all of its obligations under this
- Reference. Subject to Section 10 regarding confidentiality, Customer will: (a) make one or more representatives
reasonably available for reference inquiries from potential StockpileReports customers, partners, and investors; (b) permit
StockpileReports to create and publish a case study describing in general terms the nature of Customer's use of the
StockpileReports Platform; and (c) permit StockpileReports to issue and publish a press release containing a quotation
from a representative of Customer announcing that Customer has subscribed to use the StockpileReports Platform and
the general context of the intended use. In addition, Customer hereby consents to StockpileReports's display of
Customer's logo on StockpileReports's web site where StockpileReports displays the names and logos of its customers.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is
in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at
the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may
change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed
given two business days following the date of mailing or one business day following delivery to a courier.
- Force Majeure. StockpileReports will not be liable for, or be considered to be in breach of or default under this
Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or
condition beyond StockpileReports's reasonable control, so long as StockpileReports uses all commercially reasonable
efforts to avoid or remove such causes of non-performance.
- Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with
the local laws of the State of Washington, U.S.A, without regard to the conflict of laws principles thereof. Each party
hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in Seattle, Washington,
in connection with any action arising out of or in connection with this Agreement.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other
breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this
Agreement will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be
construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions
of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the
StockpileReports Technology under this Agreement is found to be illegal, unenforceable, or invalid, Customer's right to
use the StockpileReports Technology will immediately terminate.
- Commencing Legal Action. Customer's action for breach of this Agreement or any other action otherwise
arising out of this Agreement must be commenced within one year from the date the right, claim, demand, or cause of
action first occurred.
- Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the
attached exhibits, if any. No ambiguity will be construed against any party based upon a claim that that party drafted the
ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have
been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement.
Whenever required by context, a singular number will include the plural, the plural number will include the singular, and
the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean
such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the
terms thereof. Whenever the words "include", "includes" or "including" are used in this Agreement, they will be deemed to
be followed by the words "without limitation." W henever the words "hereunder," "hereof," "hereto," and words of similar
import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular
Article, Section or other provision hereof. The word "or" is used in the inclusive sense of "and/or." The terms "or," "any"
and "either" are not exclusive.
- Counterparts. This Agreement and any signed agreement or instrument entered into in connection with this
Agreement, and any amendments hereto or thereto, may be executed in two or more counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and delivered will be an original, but all of which
together will constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a fax
machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an "Electronic Delivery") will
be treated in all manner and respects as an original executed counterpart and will be considered to have the same
binding legal effect as if it were the original signed version thereof delivered in person. No party hereto shall raise the use
of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever
waives any such defense, except to the extent that such defense relates to lack of authenticity.
- Entire Agreement. This Agreement, including all schedules and exhibits, and all Order Forms, are the final and
complete expression of the agreement between these parties regarding the StockpileReports Technology. This
Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding
these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior
nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. In the
evnt of a conflict between the terms of this Agreement and the terms of the Order Form, the terms of the Order Form will
prevail. No employee, agent, or other representative of StockpileReports has any authority to bind StockpileReports with
respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this
Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify,
interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement
signed by an authorized agent of the party against whom enforcement is sought. StockpileReports will not be bound by,
and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement
(whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance,
confirmation, correspondence, or otherwise, unless StockpileReports specifically agrees to such provision in writing and
signed by an authorized agent of StockpileReports.