YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE UTILIZING THE
APPLICATION. BY INSTALLING AND UTILIZING THE APPLICATION YOU ACKNOWLEDGE YOUR
ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS APPLICATION EULA ("AGREEMENT"). IF YOU
DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT UTILIZE THE
IF YOU PURCHASED THIS APPLICATION FROM A CENTRAL APPLICATION MARKETPLACE OPERATED BY ANYONE OTHER THAN ON CENTER SOFTWARE, SUCH AS THE APPLE APP STORE OR THE GOOGLE PLAY STORE, (A "STORE") THEN YOU SHALL BE ENTITLED TO A REFUND IN ACCORDANCE WITH THE TERMS AND CONDITIONS APPLICABLE TO THAT PARTICULAR STORE. OTHERWISE, YOUR RIGHT TO A REFUND SHALL BE GOVERNED BY THE APPLICABLE OASIS PLATFORM AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, ALL REFERENCES TO "YOU" OR "USER" IN THIS AGREEMENT SHALL MEAN COLLECTIVELY THE ORGANIZATION AND THE USER OF THE APPLICATION. IN SUCH INSTANCE, BY INSTALLING AND UTILIZING THE APPLICATION YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, AND THAT THE ORGANIZATION AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
ON CENTER SOFTWARE OFFERS A CLOUD BASED TECHNOLOGY SERVICE (THE "OASIS PLATFORM") WHICH ENABLES LICENSED USERS (EACH A "CLIENT") TO ACCESS THE OASIS PLATFORM, EITHER DIRECTLY OR VIA AN APPLICATION, FOR THE PURPOSE OF ACCESSING PROJECT AND COMPANY DATA. THIS APPLICATION WORKS IN CONJUNCTION WITH THE OASIS PLATFORM AND DOES NOT INDEPENDENTLY PROVIDE FUNCTIONALITY SIMILAR TO THE OASIS PLATFORM. THIS AGREEMENT ASSUMES THAT EITHER (A) YOU HAVE ALREADY ENTERED INTO AN AGREEMENT WITH ON CENTER SOFTWARE ENTITLING YOU TO UTILIZE THE OASIS PLATFORM (AN "OASIS PLATFORM AGREEMENT"), OR (B) A CLIENT HAS ENTERED INTO AN OASIS PLATFORM AGREEMENT WITH ON CENTER SOFTWARE ENTITLING THAT CLIENT TO UTILIZE THE OASIS PLATFORM AND THAT CLIENT HAS AGREED TO ALLOW YOU TO UTILIZE THIS APPLICATION TO ACCESS THE FUNCTIONALITY OF THE OASIS PLATFORM. IF NEITHER OF THE FORGOING IS TRUE DO NOT ACCEPT THIS AGREEMENT BECAUSE YOUR LICENSE TO USE THE APPLICATION IS LIMITED TO USE IN CONJUNCTION WITH THE OASIS PLATFORM. YOU WILL BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE PAYMENT OF ANY APPLICATION FEES EVEN IF YOU HAVE NOT ENTERED INTO AN OASIS PLATFORM AGREEMENT.
This Agreement is effective as of the day you first download an Application or first access an Application, whichever is later ("Effective Date"), by and between ON CENTER SOFTWARE, Inc. with offices at 8708 Technology Forest Pl, #175, The Woodlands, TX 77381 and contact information of 800-880-8254 or firstname.lastname@example.org ("ON CENTER SOFTWARE"), and you ("User"). For the sake of clarity, if you downloaded or otherwise obtained the Application from a Store, the operator or owner of that Store (the "Proprietor") is neither a party to this license nor responsible for the Application in any way. In consideration of the promises and the mutual obligations of the parties set forth herein, and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Applications. ON CENTER SOFTWARE offers certain software products which functionality when used in conjunction with the Oasis Platform ("Applications"). These Applications may be proprietary work of ON CENTER SOFTWARE or may be the proprietary work of third parties who have granted ON CENTER SOFTWARE the right to sublicense the Applications. Examples of Applications offered by ON CENTER SOFTWARE include but are not limited to Oasis Takeoff and Oasis FieldCenter.
2.License to Applications. ON CENTER SOFTWARE hereby grants to User a limited, non-transferable, non-assignable license to install on one and use the object code of the Application on one device (e.g., computer, smart phone, or tablet) solely for use by one User at one time and solely in conjunction with User's use of the Oasis Platform as authorized by the Client and the Oasis Platform Agreement. User may not (i) install Applications on computer products designed to allow simultaneous access by multiple end users, such as those in a server or mainframe environment, or (ii) install Applications in a way to allow their utilization by anyone other than a human - computerized utilization of Applications is not allowed. User is responsible for ensuring that User has appropriate hardware, software, and connectivity to enable an Application to function in accordance with the documentation for the Application. User is solely responsible for ensuring that User's use of the Application is in keeping with the rights granted by the Client to the User. User is responsible for keeping the Application up to date, including downloading and installing any new versions that may become available after installation.
3. Restrictions on Use. User shall strictly adhere to any restrictions on use of the Application Oasis Platform that Client may place as a condition of issuing Login Information. User agrees that it is solely responsible for ensuring that it has read and understands the Oasis Platform Agreement between the Client issuing Login Information to User and ON CENTER SOFTWARE and User agrees that User shall not utilize the Application in a way which would constitute a violation of that Client's Oasis Platform Agreement.
4. Reservation of Rights. ON CENTER SOFTWARE reserves all rights not expressly granted in of this Agreement. Except as provided therein, User may not copy, use, sublicense, modify, adapt, or create derivative works of the Application or related documentation or remove any copyright or other proprietary rights notices therefore. ON CENTER SOFTWARE reserves the right to suspend or terminate access by any User accessing the Application if such use represents a breach of the terms and conditions of this Agreement, without prejudice to any other remedies available to ON CENTER SOFTWARE. All rights granted herein are a license, not a sale. Other than the rights licensed to User hereunder, User has no other implied license or right of any kind regarding the foregoing. User shall not itself, and shall not permit any other party to, directly or indirectly, in whole or in part, sublicense, distribute, lease, make available as a service bureau or otherwise allow any third parties any right or access to the Application; disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code for the Application. User acknowledges and agrees that ON CENTER SOFTWARE owns and retains all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights ("Proprietary Rights") in the Application, documentation, any training materials and any copies, modifications, adaptations, derivative works, and enhancements thereof, by whomever produced. User agrees that any threatened or actual breach of ON CENTER SOFTWARE's Proprietary Rights by User shall constitute immediate, irreparable harm to ON CENTER SOFTWARE for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring ON CENTER SOFTWARE to post any bond or any other security (or if a court shall require a bond, then a bond in no amount above U.S. $1,000). Nothing contained herein shall limit either party's right to any remedies at law, including the recovery of damages for breach of this Agreement.
5. Login Information. Use of Applications will require that the User utilize unique identifiers ("Login Information") to access the Oasis Platforms. User shall be solely responsible for legally obtaining such Login Information from Client and Client shall have the right to terminate such Login Information at will and without notice. User shall not represent or otherwise suggest to Client that ON CENTER SOFTWARE endorses User or recommends that Client issue Login Information to User. The decision as to whether to issue Login Information to User is solely within Client's discretion.
6. Fees and Payment. User, or Client on User's behalf, shall pay ON CENTER SOFTWARE the applicable fees for all Applications, if any, in accordance with the Oasis Platforms Agreement, or the Store from which User obtained the Applications ("Application Fees"). If not paid directly to the Store, the Application Fees will be paid in accordance with the Oasis Platform Agreement or, if the Oasis Platform Agreement is silent on payment, within thirty (30) days of User's downloading or enabling of Application. Past due Application Fees will incur interest at 1.5% per month or the maximum rate under applicable law, if less. Upon User's failure to pay any amounts owed under this Agreement when due, User hereby agrees that, in addition to any other remedies available at law or equity, ON CENTER SOFTWARE may prevent User's access to the Application without notice. User acknowledges and agrees that ON CENTER SOFTWARE will have no liability for any loss of the use of data resulting from its exercising the rights set forth in this paragraph.
7. Application Warranty and Support. ALL APPLICATIONS ARE PROVIDED "AS IS, WHERE IS". ON CENTER SOFTWARE PROVIDES NO AND TO THE MAXIMUM AMOUNT ALLOWABLE BY LAW EXPRESSLY DISCLAIMS ALL WARRANTIES, GUARANTEES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY APPLICATIONS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ERROR-FREE USE, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE. USER IS SOLELY RESPONSIBLE FOR ENSURING THAT ALL APPLICATIONS OPERATE IN ACCORDANCE WITH THEIR DOCUMENTATION AND USER'S EXPECTATIONS. USER'S SOLE REMEDY FOR ANY DEVIATION THERETO IS TO SEEK A REFUND FOR APPLICATION FEES AS SET FORTH IN THE FIRST PARAGRAPH OF THIS AGREEMENT. NO PROPRIETOR MAKES ANY WARRANTIES ABOUT THE APPLICATION UNDER THIS AGREEMENT AND NO PROPRIETOR IS RESPONSIBLE FOR THE SUPPORT OR MAINTENANCE OF ANY APPLICATION. ANY AND ALL CLAIMS UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ALL PRODUCT LIABILITY CLAIMS, CLAIMS THAT THE LICENSED APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION) MUST BE MADE TO ON CENTER SOFTWARE AND NOT TO PROPRIETOR,.
8. Term. This Agreement shall be effective as of the Effective Date. ON CENTER SOFTWARE may terminate this Agreement at any time by providing User with written notice of ON CENTER SOFTWARE's intent to do so. This Agreement shall automatically terminate upon the earliest of (i) the expiration or termination of Client's Oasis Platform Agreement, (ii) Client's revocation of User's Login Information (iii) User erasing or uninstalling the subject Application, (iv) User selling or otherwise alienating the device upon which the Application is installed, (v) User assigning any of its assets to its creditors, or voluntarily or involuntarily petitioning for the protection of bankruptcy court, or (vi) User otherwise expresses its intent to no longer utilize an Application. Rights of termination are in addition to any other remedies available to ON CENTER SOFTWARE, at law or in equity. Upon any termination or expiration of this Agreement all license rights shall immediately terminate and User shall immediately cease use of the Application. The following sections of this Agreement shall survive: 3, 4, and 6 - 13. ON CENTER SOFTWARE shall have no obligation under this Agreement to provide any data or information of any kind to User following termination. For the sake of clarity, while termination of this Agreement shall not terminate the Oasis Platform Agreement, nothing herein shall prevent ON CENTER SOFTWARE for asserting that User's breach served as a basis for violation of the Oasis Platform Agreement.
9. Indemnification. User shall indemnify and hold harmless ON CENTER SOFTWARE from any loss, damage, liability, cost or expense suffered or incurred in connection with any claim, suit or proceeding brought by a third party (including Clients) against ON CENTER SOFTWARE to the extent that it arises out of User's use of the Application. This indemnity shall survive the termination of this Agreement. ON CENTER SOFTWARE shall indemnify and hold harmless User for any third party claim that the Application, unmodified by anyone other than ON CENTER SOFTWARE, in and of itself, violates that third party's intellectual property rights. Proprietor shall not indemnify User or ON CENTER SOFTWARE in any way.
10. Limitations of Liability. NEITHER ON CENTER SOFTWARE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, RESELLERS OR REPRESENTATIVES (COLLECTIVELY "ON CENTER SOFTWARE PARTIES") SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TIME, SAVINGS, DATA, OR GOODWILL, DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE APPLICATION OR ANY RELATED APPLICATIONS, PRODUCTS OR SERVICES, OR COST OF REPLACEMENT GOODS OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE APPLICATION OR ANY RELATED FUNCTIONALITY, SERVICES, PRODUCTS, APPLICATIONS OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THEY HAVE BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR ANY DIRECT DAMAGES FOR BODILY INJURIES OR TANGIBLE PROPERTY DAMAGE PROXIMATELY CAUSED BY ON CENTER SOFTWARE, THE MAXIMUM AGGREGATE LIABILITY OF THE ON CENTER SOFTWARE PARTIES IN ALL EVENTS SHALL BE LIMITED TO THE HIGHER OF THE PRICE USER PAID TO THE STORE OR ON CENTER SOFTWARE FOR THE APPLICATION OR THE LOWEST AMOUNT ALLOWABLE BY LAW.
11. Dispute Resolution and Arbitration. The parties agree that, except as otherwise provided below, they shall first attempt to resolve any dispute, claim or controversy relating in any way to this Agreement (a "Dispute") between an officer of each party who has authority to resolve the Dispute. If any Dispute cannot be settled in this manner within sixty (60) days of written notice being served by a party on the other party, the parties agree that the Dispute may be settled by arbitration in accordance with the Commercial Arbitration Rules of American Arbitration Association ("Rules") in Houston, Texas, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will conduct arbitration and the arbitrators will have a background or training in contract law and intellectual property. The arbitrators may award attorneys' fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, as necessary, without breach of this arbitration Agreement and without any abridgment of the powers of the arbitrator(s).ON CENTER SOFTWARE and User acknowledge and agree that Proprietor is a third party beneficiary of this Agreement and has the right to enforce this Agreement against each.
12. Generally. User may not assign this Agreement or any rights and obligations hereunder in whole or in part. Any attempted assignment in contravention hereof shall be void and of no effect. ON CENTER SOFTWARE may assign this Agreement at will. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent to any prior or subsequent breach. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that this Agreement shall be more strictly construed against one party than the other. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, in the United States, without regard to its rules regarding conflict of laws or the application of UCITA or any international conventions on the transfer of technology or goods. Each party hereby consents to the exclusive jurisdiction of the state and federal courts located in and around Houston, Texas. In the event of a conflict between this Agreement and the Oasis Platform Agreement, the Oasis Platform Agreement shall control, except and unless the Application was distributed to the User from a Store and the conflicting provision is required by the terms and conditions of distribution as set forth by that Store.
13. User Consent and Warranties. By utilizing the Application you agree to transact business with ON CENTER SOFTWARE electronically and you represent and warrant that you have the authority to accept this Agreement on behalf of yourself and any institution you represent, that you are more than 18 years of age, will abide by and comply with this Agreement, are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and are is not listed on any U.S. Government list of prohibited or restricted parties.