CUFFLINK™ SERVICES
END USER LICENSE AGREEMENT
Last updated: February 22, 2024
MOUNTAIN VECTOR ENERGRY LLC, A NEW MEXICO LIMITED LIABILITY COMPANY (together with its sucessors and assigns, “MVE”), IS WILLING TO LICENSE THE CUFFLINK™ SERVICES (AS DEFINED BELOW) ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY CLICKING ON “I ACCEPT THE AGREEMENT” OR A SIMILAR BUTTON, OR BY INSTALLING, ACCESSING OR USING THE CUFFLINK SERVICES IN ANY MANNER, YOU ARE INDICATING YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT IN YOUR CAPACITY AS AN OFFICER, EMPLOYEE OR AGENT OF A CUSTOMER (AS DEFINED BELOW), YOUR ACCEPTANCE REPRESENTS THAT YOU ARE ACTING WITHIN THE SCOPE OF YOUR EMPLOYMENT OR OTHER SERVICES RELATIONSHIP WITH SUCH CUSTOMER IN USING AND ACCESSING THE CUFFLINK SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO USE AND ACCESS THE CUFFLINK SERVICES ON BEHALF OF SUCH CUSTOMER, THEN MVE IS UNWILLING TO LICENSE THE CUFFLINK SERVICES TO YOU, AND YOU SHOULD SELECT THE “NO, DECLINE” OR SIMILAR BUTTON AND REFRAIN FROM USING OR ACCESSING THE CUFFLINK SERVICES IN ANY MANNER.
1. Parties. The parties to this Agreement are MVE and you, an end user of the Software (as defined below). In most cases, an end user of the Software uses and accesses the Software in his or her capacity as an employee, agent or other service provider of a company or other legal entity. As used in this Agreement, “Customer” means a company or other legal entity with whom MVE has entered into a software as a service, license or similar agreement pursuant to which MVE agrees to allow applicable end users employed by or otherwise acting on behalf of such company or legal entity to use and access the Software. Except as context may otherwise require, if you are using or accessing the Software in your capacity as an officer, employee or agent of, or otherwise on behalf of, a particular Customer, the term “Customer” as used in this Agreement means such Customer.
2. The Software. The software licensed under this Agreement consists of computer programs in compiled, object code form, data compilation(s), and related documentation generally referred to as MVE’s “Cufflink” software (collectively, the “Cufflink Services™” or the “Software”), which is intended for use in monitoring and managing energy and utility use in a commercial setting. The terms “Cufflink Services™” or “Software” as used herein refers to any version of the Cufflink™ software. In addition, in the absence of a written agreement to the contrary, this Agreement will govern your use of, and the terms “Cufflink Services™” and “Software” will include, any other software application used by you that was developed by MVE and its licensors and made available to its users.
3. Evaluation License Grant. If Customer or you have downloaded, received or otherwise been provided access to an evaluation version of the Software, Customer and you are authorized to use the Software on a limited, royalty-free, nonexclusive nontransferable, non-sublicensable basis for whatever period of time is specified by MVE at the time such evaluation version is made available to you, and you may use such evaluation version solely for evaluation purposes. You are not permitted to use an evaluation version of the Software for any other purpose or to use such version beyond the applicable evaluation period. MVE reserves the right to disable any evaluation version of the Software at the expiration of the evaluation period.
4. Subscriptions. Customer or you may purchase the right to use and access the Software (each, a “subscription”) for applicable license or service fees and for the applicable license term specified by MVE at the time of purchase pursuant to an applicable purchase order or other applicable “software as a service” or other license documentation (each, a “Customer Agreement”). Any user of the Software pursuant to any such purchase is referred to herein as a “registered user”. If Customer or you have purchased a subscription, you are hereby granted a limited, royalty-free, nonexclusive, nontransferable, non-sublicensable right to use and access the Software for the term specified at the time of purchase (with optional renewal terms) on the terms and conditions contained in the applicable Customer Agreement and the additional terms and conditions contained in this Agreement, unless prior to renewal this license is terminated by either party pursuant to the applicable Customer Agreement. Renewal procedures will be provided to registered users prior to the expiration of the initial term, if applicable, and unless such procedures are strictly satisfied, including the payment by Customer of any required license fee, use of the Software for any purpose after the expiration of the initial term is not authorized. Upon expiration of the initial subscription term, the Software may automatically disable itself, or MVE may otherwise take steps to terminate your use of and access to the Software. Immediately upon expiration or termination of this license for any reason, you shall return to MVE any copies of the Software and related documentation that are in your possession at such time.
5. Archival Copies. When Customer or you purchase a subscription to the Software, you may copy any applicable downloadable portions of the Software for archival purposes, provided that (i) any copy must contain the original Software’s proprietary notices in unaltered form, (ii) you may not use any such archived copy of the Software unless you have paid all applicable license fees and a license subscription for the Software is then in effect and (iii) you must delete any such archived copy of any such applicable portion of the Software at the end of the applicable license term.
6. Restrictions. You may not: (i) permit others to use the Software, except as authorized by MVE for applicable network use for which the appropriate number of licenses for the Software have been purchased; (ii) modify or translate the Software; (iii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (iv) create derivative works based on the Software; (v) merge the Software with another product; (vi) copy the Software, except as expressly provided above; (vii) remove or obscure any proprietary rights notices or labels on the Software; or (viii) use the Software in any manner other than its intended use as described at www.mountainvector.com or in any other written materials posted or otherwise made available to licensees by MVE from time to time regarding the Software
7. Transfers Prohibited. This Agreement is personal to you. You are prohibited from selling, loaning, renting, leasing, sublicensing, transmitting, distributing or redistributing, or otherwise transferring or assigning any part of the Software or the accompanying documentation to any third party at any time whether by operation of law or otherwise and whether with or without consideration. Without limiting the foregoing, any transmittal or transfer of the Software or the accompanying documentation on the Internet or by other electronic means is prohibited. ANY REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION NOT IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS LICENSE IS PROHIBITED BY LAW AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES. ANY ACTUAL OR ATTEMPTED SALE, LOAN, RENTAL, LEASE, SUBLICENSE, TRANSMISSION, DISTRIBUTION OR REDISTRIBUTION OR OTHER TRANSFER OR ASSIGNMENT OF THE SOFTWARE OR THE DOCUMENTATION IN WHOLE OR IN PART IN ANY MEDIA OR BY ANY METHOD SHALL IMMEDIATELY AND IRREVOCABLY TERMINATE THIS LICENSE AGREEMENT FOR ALL PURPOSES.
8. Ownership. MVE and its suppliers own the Software, all physical copies thereof, and all intellectual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Software’s design and coding methodology. The Software is protected by United States copyright laws and international treaty provisions. This Agreement provides you only limited use and access rights, and no ownership of any intellectual property. All rights not expressly granted herein are expressly reserved and retained by MVE.
9. No Warranty. NEITHER MVE NOR ANY OF ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND MVE AND ITS SUPPLIERS AND LICENSORS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. YOU ASSUME THE ENTIRE RISK OF SELECTION, INSTALLATION, AND USE OF THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
10. Local Law. If implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. Some jurisdictions do not allow limitations on how long an implied warranty may last, so the above limitations may not apply to you. This warranty gives you specific rights, and you may have other rights which vary from jurisdiction to jurisdiction.
11. Limitation of Liability. INDEPENDENT OF THE FORGOING PROVISIONS, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL MVE OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF MVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL MVE’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED IN THE AGGREGATE THE AMOUNT, IF ANY, OF AGGREGATE LICENSE FEES PAID FOR THE SOFTWARE BY YOU DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, IF ANY.
12. Export Controls. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. Neither the Software nor the underlying information or technology may be electronically transmitted or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders.
13. U.S. Government End-Users. The Software is a “commercial item”, as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. government end users acquire the Software with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
14. Licensee Outside the U.S. If you are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s’y rattache, soient rediges en langue anglaise (translation: “The parties confirm that this Agreement and all related documentation is and will be in the English language”); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
15. Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
16. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Albuquerque, New Mexico, USA, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of New Mexico, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
17. Jurisdiction and Venue. The courts of Bernalillo County in the State of New Mexico, USA and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.
18. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
19. Privacy Policy. MVE agrees to treat your private personally identifiable information in accordance with the terms of MVE’s then current privacy policy, which is incorporated herein for all purposes, and which is available for review at https://mountainvector.com (or a link provided at such URL). By agreeing to the terms of this Agreement, you also agree to the terms of such privacy policy, as it may be updated from time to time.
20. Modifications. MVE reserves the right, at its discretion, to change, modify, add or remove portions of this Agreement (or any additional terms and conditions or policies referenced herein), and we will post this Agreement (or such additional terms and conditions or policies) as so modified on the www.mountainvector.com homepage or one of its subpages. Your continued use of the Software following the posting of changes to this Agreement (or any such additional terms and conditions or policies) will mean you accept those changes.
21. Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be construed under the laws of the State of New Mexico, USA, excluding rules regarding conflicts of law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The parties agree that the Uniform Computer Information Transactions Act or any version thereof, adopted by any state, in any form (“UCITA”), shall not apply to this Agreement, and to the extent that UCITA may be applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.
