POLLEN SENSE LLC
END-USER LICENSE AGREEMENT
This Sales and Software License Agreement (“Agreement”) is a legally binding contract between you (hereinafter referred to as “Licensee”) and Pollen Sense, LLC (hereinafter referred to as “Pollen Sense”). By purchasing any Device, Pollen Software, Data (as those terms are defined below), or any licenses or leases thereto, you agree to the terms of this Agreement. More specifically, the parties agree as follows:
1. GENERAL
Subject to the terms and conditions of this Agreement, Licensee desires to acquire from Pollen Sense, and Pollen Sense desires to sell or lease, as the case may be, to Licensee, any of, (1) a device which quantifies particulates from the ambient air (“Device”); (2) license to the software accompanying the device (“Embedded Software”); (3) license to access online services (“Web Software”) to which Devices report collected data; (4) license to access mobile App(s) (“App Software”); and/or (5) license to processed or raw data outputs of one or more Devices (“Data”); for the amounts listed on Pollen Sense’s quote or website (the “Point of Sale”). Web Software, App Software, and Embedded Software including all updates, modifications, corrections, enhancements or replacements thereto that are generally made available by Pollen Sense, and shall together be referred to as “Pollen Software”.
2. DEVICE LEASE (if applicable)
2.1. Pollen Sense shall lease to Licensee the Device described in the Point of Sale.
2.2. Licensee agrees to pay Pollen Sense rent for possession and use of the Device in the amount and for the term specified at the Point of Sale. Upon termination of the lease period, Licensee shall return the Device to Pollen Sense within 30 days at its own expense.
2.3. If the Device is being provided at no cost to Licensee on a trial, promotional, or similar basis, Licensee shall maintain the Device in good working condition and ensure Device is actually operating no less than 90% of the time of trial, promotional, or similar period. Failure to comply with this paragraph shall constitute default under Section 2.5.
2.4. Licensee shall maintain Device in good working condition, reasonable wear and tear excepted. Licensee shall be responsible for repair or replacement, at Pollen Sense’s option, of any Device in Licensee’s possession with damage in excess of reasonable wear and tear.
2.5. In case of Licensee’s failure to pay any installment of rent or to fulfill or perform any other agreement or condition required to be fulfilled or performed by Licensee, or if proceedings are instituted by or against Licensee under any provision of the Bankruptcy Act or for the appointment of a receiver, or if Licensee shall make an assignment for the benefit of creditors, Licensee shall be in default hereunder and shall return the Device to Pollen Sense. Furthermore, Pollen Sense may (exercised at any time thereafter and without notice to or demand on Licensee) declare the entire unpaid amount of the rent due for the lease period specified at the Point of Sale immediately due and payable and Pollen Sense may institute proceedings to enforce payment thereof and Licensee may repossess the Equipment with or without legal process.
3. GRANT OF LICENSE
3.1. Pollen Sense hereby grants to Licensee during the term of this Agreement, and Licensee accepts from Pollen Sense, a limited, non-exclusive, non-transferable, and non-sub-licensable license to use Pollen Software in accordance with EXHIBIT A. The license granted herein shall continue unless and until terminated in accordance with the provisions of this Agreement.
3.2. The Device does not transmit or save raw data it collects; all data are processed using the Embedded Software and Web Software. Licensee agrees that all data, whether in raw or processed form, produced by the Device, or processed by the Pollen Software are the property of Pollen Sense.
3.3. Pollen Sense hereby grants to Licensee during the term of this Agreement, and Licensee accepts from Pollen Sense, a limited, non-exclusive, and non-transferable license to use Data in accordance with EXHIBIT A. If Licensee owns or leases a Device, Licensee may sublicense Data from that Device to third parties. The license granted herein shall continue unless and until terminated in accordance with the provisions of this Agreement.
3.4. The license to the Pollen Software granted herein is limited to object code and related documentation pertaining thereto (“Documentation”) only. This Agreement grants no rights to use, copy, modify, distribute, license or create derivative works of the source code of any Pollen Software or to disassemble, decompile, reverse engineer, or otherwise derive the source code of any Pollen Software or Device in any manner.
3.5. This Agreement is not a sale of Pollen Software or Data nor is it a transfer of any intellectual or proprietary rights in Pollen Software or Data. Except for the licensed rights expressly granted in this Agreement, Licensee acknowledges and agrees that Licensee does not acquire any right, title or interest in or to Pollen Software or Data. Licensee further acknowledges and agrees that Pollen Sense shall at all times retain its ownership rights in Pollen Software and all subsequent copies and modifications of Pollen Software, regardless of the form or media in or on which the original and other copies may subsequently exist. Pollen Sense may use Data in any way it deems desirable, including licensing Data to third parties, provided, however, that if an owner or lessor of Device requests attribution of Data from the subject device, Pollen Sense shall attribute the Data licensed to the third party to the owner or lessor of the Device. Such attribution shall not be required when Data is aggregated with Data from other Devices.
3.6. Licensee acknowledges that Pollen Sense reserves the right, at any time and without notice, to monitor compliance with the terms of this Agreement and to otherwise protect its rights in and to Pollen Software and Data by incorporating license management technology into Pollen Software and monitoring usage, including, without limitation, time, date, access or other controls, counters, serial numbers and/or other security devices.
3.7. Licensee acknowledges that all title and copyrights in and to Pollen Software (including but not limited to any images, photographs, animations, video, audio, music, text, “applets,” and “plug-ins,” incorporated into Pollen Software) and Data, the accompanying printed materials, and any copies of Pollen Software and Data are owned by Pollen Sense.
4. OBLIGATIONS OF LICENSEE
4.1. Except as expressly permitted in this Agreement and regardless of whether Licensee purchases or leases the Device, Pollen Software, or Data, Licensee may not: (a) copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license or commercially exploit Pollen Software or any part thereof; (b) reverse engineer, decompile, disassemble, translate or create any derivative work of the Device or Pollen Software, or any part thereof; (c) obscure, erase, remove, or alter any proprietary or intellectual property notice including any trademarks, trade names, logos, patent or copyright markings contained in or on the Device or Pollen Software, or any part thereof, or any information displayed, transmitted or printed from Pollen Software; (d) use or permit use of Pollen Software for timesharing or on a service bureau basis or otherwise for or in support of, directly or indirectly, any person or entity other than Licensee’s employees and contractors performing work for Licensee and bound to treat Pollen Software as Confidential Information.
4.2. Licensee hereby assigns and transfers to Pollen Sense all of Licensee’s right, title and interest in and to any modifications or derivative works of Pollen Software created for Licensee by Pollen Sense or its suppliers, such assignment being effective upon creation of such works, and shall include, without limitation, all rights under any intellectual property laws, including copyright.
4.3 Licensee shall comply with all applicable export, import, or other relevant laws of any applicable jurisdiction. Determination of the applicable law and obtaining any necessary export or import approval for Pollen Software is the sole responsibility of the Licensee. Licensee agrees 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 Pollen Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
4.4 The Device requires at least intermittent connection to the public internet. Licensee agrees to provide this connection, and cover the costs and risks associated with this connection. Licensee will also monitor the network conditions and notify Pollen Sense as soon as possible of any network intrusions, denial of service attacks, or any other suspicious network activity, so that Pollen Sense can properly manage and secure the device. The Device has remote access software installed, which allows Pollen Sense to remotely monitor, update, and manage the device. Licensee will allow, and will take no measures to prevent Pollen Sense from accessing this remote access software.
4.5 Licensee hereby agrees to the Privacy Policy and Terms of Use for Online Customers found in Exhibits A and B, respectively.
5. FEES
5.1. Licensee agrees to pay Pollen Sense the Purchase Price, License Fees, and Subscription Fees as set forth at the Point of Sale for any Device sold or leased and any licenses granted hereunder. The fees paid hereunder are non-refundable and are due at the time of purchase or lease unless other terms are explicitly stated by Pollen Sense.
5.2. Licensee shall be responsible for and shall pay all taxes, duties and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under this Agreement, including interest and penalties thereon (exclusive of taxes on Pollen Sense’s net income), irrespective of whether included in any invoice sent to Licensee at any time by Pollen Sense. Licensee shall provide copies of any and all exemption certificates to Pollen Sense if Licensee is entitled to any exemption.
6. LIMITED WARRANTIES
6.1. Licensee represents and warrants to Pollen Sense that: (a) Licensee shall be solely responsible for all use of Device, Pollen Software, and Data by Licensee; (b) Licensee has the full authority and right to enter into this Agreement; (c) the undersigned representative of Licensee is authorized to execute this Agreement on behalf of Licensee; and (d) Licensee agrees to take all reasonable steps to protect Device and Pollen Software from unauthorized use, illegal reproduction, or illicit distribution.
6.2. Pollen Sense represents and warrants to Licensee that: (a) Pollen Sense has the full authority and right to enter into this Agreement and to grant the licenses granted hereunder; (b) the undersigned representative of Pollen Sense is authorized to execute this Agreement on behalf of Pollen Sense; and (c) upon delivery and continuing during the term of this agreement, Device and Pollen Software will operate substantially in accordance with the Documentation. In the event of a failure of the warranty in Section 6 .2(c), Licensee’s exclusive remedy is to report the error or deficiency and Pollen Sense will correct the error or deficiency with reasonable commercial efforts and diligence so as to make Pollen Software comply with the Documentation.
6.3. THERE IS A LIMITED, TWELVE (12) MONTH WARRANTY FROM THE DATE OF PURCHASE OR LEASE ON THE DEVICE WHICH INCLUDES ONLY THE REPAIR AND/OR REPLACEMENT OF PARTS AND DOES NOT COVER THE EXPENSE ASSOCIATED WITH SHIPPING TO POLLEN SENSE. THIS LIMITED WARRANTY IS VOID IF LICENSEE ATTEMPTS ANY SELF-SERVICE OR IF ANY OTHER PARTY ATTEMPTS TO REPAIR THE DEVICE. EXCEPT AS EXPRESSLY WARRANTED IN SECTIONS 6.1 AND 6.2 OR IN THIS SECTION 6.3 IMMEDIATELY ABOVE, THE DEVICE AND THE POLLEN SOFTWARE ARE PROVIDED “AS IS” AND BOTH PARTIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. POLLEN SENSE DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF POLLEN SOFTWARE IN TERMS OF ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE.
6.4. During the term of this Agreement, Pollen Sense will provide the following Hosting Services with respect to the Pollen Software: (a) Pollen Sense will host Pollen Software on hardware under the control of and managed by Pollen Sense and provide access to Pollen Software to Licensee; (b) Pollen Sense will correct within the time frames set forth in this Agreement any reported failure of the Pollen Software to conform to or perform in accordance with this Agreement at no charge to Licensee; (c) Pollen Sense will furnish Licensee all updates which are released generally by Pollen Sense to its licensees; (d) Pollen Sense will provide Licensee with telephone-based support to assist Licensee with any Pollen Software that fails to conform to this Agreement due to actual defect in Pollen Software; and (e) Pollen Sense will provide data backup services for Pollen Software.
6.4.1. The Pollen Software’s failure to conform to this Agreement will be divided into three classes of severity: (i) a “critical” nonconformance shall be any nonconformance causing a complete failure of the Pollen Software or a nonconformance that has a material adverse impact on Licensee’s business operations; (ii) a “serious” nonconformance shall be any nonconformance which seriously impairs the functionality of the Pollen Software (this includes any critical nonconformance for which a work-around or detour solution has been devised or identified); and (iii) a “minor” nonconformance shall be any nonconformance which does not seriously impair the functionality of the Pollen Software.
6.4.2. Pollen Sense will make every reasonable effort to provide a response to a report of the above-described nonconformities by Licensee according to the following response schedule: (a) all “critical” nonconformities shall be responded to by Pollen Sense within eight (8) hours from the time that Licensee first reports such nonconformity to Pollen Sense; (b) all “serious” nonconformities shall be responded to by Pollen Sense within one (1) service day from the time that Licensee first reports such nonconformity to Pollen Sense; and (c) all “minor” nonconformities shall be responded to by Pollen Sense within five (5) service days of the date that Licensee first reports such nonconformity's to Pollen Sense. Pollen Sense’s duty to respond shall consist of (i) delivery of an existing or new update, modification or enhancement to correct such nonconformance; or (ii) identification of a workaround or detour solution; or (iii) a request for more information for purposes of analyzing or verifying the nonconformance; or (iv) delivery of a plan for correcting the nonconformance.
6.4.3. A “Service Outage” shall mean a period of at least five (5) consecutive hours during which the Pollen Software are not available to Licensee, other than scheduled maintenance, which shall not be deemed a Service Outage.
6.4.4. Pollen Sense shall make all reasonable efforts to schedule Pollen Software maintenance activities outside of 8 am to 8 pm Mountain time (“Normal Business Hours”). Should maintenance be required during Normal Business Hours, Pollen Sense shall notify Licensee prior to conducting any such maintenance except in such cases where Pollen Sense determines that maintenance must be performed immediately in order to correct a malfunction or to avoid more serious consequences. Failure by Pollen Sense to provide Licensee such prior notification of scheduled maintenance that occurs during Normal Business Hours shall be deemed a Service Outage.
6.4.5. In the event of a Service Outage, Licensee must notify Pollen Sense of the outage. Pollen Sense shall use all reasonable efforts to restore access to the Pollen Software, perform root-cause analysis of the outage, and to the degree possible take actions to reduce the likelihood of a repeat outage.
6.4.6. Pollen Sense shall credit Licensee for Service Outages experienced by Licensee during any service month based on the cumulative length of such outages as a percentage of total service period time, according to the schedule below:
Cumulative Length of Service Outage(s) Credit of Hosting Services
1.0% to 5.0% (95.0% to 99.0% uptime) 10% of monthly software fee
5.1 % to 10.0% (90.0% to 94.90% 25% of monthly software fee
10.1% and greater (less than 89.9% uptime) 50% of monthly software fee
6.4.7. For each Service Outage in any calendar month, Licensee’s account will be credited the pro-rata charges, as shown in the schedule herein, of the quarterly recurring fee for such services. Pollen Sense will calculate a Service Outage as defined herein, but will not include unavailability resulting from: (a) minimally disruptive Pollen Sense network maintenance; (b) Hardware Failure, as described herein.
6.4.8. This Section 6 identifies Licensee’s sole remedies for Service Outages.
6.4.9. Hosting Services do not include: (a) repair, replacement, correction, or adjustment of any malfunction to the extent caused by: (i) errors made by either Licensee’s end users or Licensee’s administrative / setup personnel (ii) unauthorized modification or repair of the Pollen Software by anyone other than Pollen Sense; or (iii) accident, catastrophe, abuse, misuse or material user error; (b) new modules, options or applications for which Pollen Sense establishes a separate license fee; (c) any custom software design, development, installation, implementation, or consulting services; (d) any implementation or consulting services; (e) services associated with upgrading any portion of the implementation of Pollen Software that has been customized for a given implementation including any modifications to Pollen Sense’s software module; and (f) issues associated with a particular Device’s operation.
6.4.10 Pollen Sense shall not be liable to the Licensee in any manner or be deemed to be in breach of this Agreement because of any delay in performing or any failure to perform any of the obligations under this Agreement if the delay or failure was due to any cause beyond Pollen Sense’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labor disputes or inability to obtain or a delay in obtaining supplies of Goods or labor).
6.4.11 Throughout the term of this Agreement, at Pollen Sense’s request, Licensee will cooperate with Pollen Sense in identifying the cause of any claimed failure of the Pollen Software to substantially conform to or perform substantially in accordance with the Agreement, including without limitation, providing Pollen Sense with such documentation and other information concerning any such claimed failure as Pollen Sense may reasonably request.
6.4.12. The support services described in this Agreement will be provided by Pollen Sense to Licensee by telephone, or email during the hours of 8:00 a.m. to 8:00 p.m. Mountain Standard Time, Monday through Friday, excluding public holidays. The number to call for such non-conformity is +1 765-536-9449. Support requests can also be sent to support@pollensense.com
6.5. There is risk of security breach, malware, and other vulnerabilities for any computing devices connected to the public internet. Pollen Sense shall make commercially reasonable efforts to follow industry standard security practices and has taken precautions to minimize the probability of security related problems with the Device. Nonetheless, Pollen Sense makes no guarantee regarding the security of the Device, or the effect the Device may have, if infected, on other devices which might be connected to the same network. Licensee assumes all risk in this regard, and will be solely responsible for monitoring and/or safeguarding the network. Nothwithstanding the foregoing, Pollen Sense will make commercially reasonable efforts to quickly address any security related issues with a Device.
7. LIMITATIONS ON LIABILITY
7.1. Pollen Sense's liability, whether in contract, tort or otherwise, arising out of or in connection with the Device, Pollen Software, Documentation or this Agreement shall not exceed the amounts paid to Pollen Sense by Licensee for Pollen Software that gave rise to such claim.
7.2. IN NO EVENT SHALL POLLEN SENSE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF ANTICIPATED PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF POLLEN SOFTWARE OR POLLEN SENSE'S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT OR POLLEN SOFTWARE, WHETHER OR NOT LICENSEE OR ANY OTHER THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INDEMNIFICATION
8.1. Pollen Sense shall defend, indemnify and hold Licensee harmless (including payment of all reasonable costs, attorneys’ fees, settlements and damages) from any actions brought against Licensee to the extent that it is based on a claim that the Device, Pollen Software or Documentation infringe any U.S. registered copyright or U.S. registered patent of any third party, provided that: (a) Pollen Sense is promptly notified in writing of the claim; (b) Pollen Sense has sole control of the investigation, preparation, defense, and/or settlement of such claim; (c) at Pollen Sense’s request and expense, Licensee provides reasonable assistance and information to Pollen Sense. Notwithstanding the foregoing, Pollen Sense shall have no liability with respect to any claim that arises from (x) the use, operation, or combination of Pollen Software or Documentation with programs, data, equipment, or materials not provided by Pollen Sense if such infringement would have been avoided by the use of Pollen Software or Documentation without such other programs, data, equipment, or materials; (y) a modification of Pollen Software or Documentation by anyone other than Pollen Sense; or (z) Licensee’s use of any release of Pollen Software for which Pollen Sense no longer offers support services or for which infringement could have been avoided by Licensee’s use of a superseding version of Pollen Software.
8.2. In the event of any such infringement claim, Pollen Sense may at its sole option: (a) replace the infringing Pollen Software with functionally equivalent software; (b) modify such Pollen Software to render the same non-infringing, while retaining substantively equivalent functionality; (c) procure the right to continue to use such Pollen Software at no cost to Licensee; or (d) if the foregoing are not commercially reasonable, direct Licensee to terminate use of such Pollen Software. If Pollen Sense directs Licensee to terminate use of such Pollen Software (or a permanent injunction is issued against such use), Licensee shall immediately terminate such use. If Licensee’s use of Pollen Software is terminated pursuant to this Section 8.2, Licensee's remedies, in addition to the indemnification set out herein, shall be limited to the right to terminate this Agreement and receive a pro rata refund of the license fees previously paid for such Pollen Software based on a term of thirty (30) days.
8.3. THIS ARTICLE SPECIFIES LICENSEE'S SOLE AND EXCLUSIVE REMEDY AND POLLEN SENSE’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8.4. Licensee shall defend, indemnify and hold Pollen Sense harmless (including payment of all reasonable costs, attorneys’ fees, settlements and damages) from any and all claims based on Licensee's use or possession of the Device, Pollen Software, and Data excluding third party claims for which Pollen Sense has an obligation to indemnify Licensee pursuant to Section 8.1; provided that: (a) Licensee is promptly notified in writing of the claim; (b) Licensee has sole control of the investigation, preparation, defense, and/or settlement of such claim; (c) at Licensee’s request and expense, Pollen Sense provides reasonable assistance and information to Licensee.
9. CONFIDENTIALITY
9.1. For purposes of this Agreement, the term “Confidential Information” shall mean (a) any information or materials, in whatever form, received by one party from the other (the “Disclosing Party”) about the Disclosing Party’s business, business plans, customers, suppliers, strategies, trade secrets, operations, records, finances, assets and technologies,(b) any other confidential or proprietary information designated as such in writing by the Disclosing Party; provided, however, information shall not be deemed Confidential Information if it: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party from the Disclosing Party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.
9.2. The parties agree, both during the term of this Agreement and thereafter, to hold each other's Confidential Information in confidence and utilize it only in accordance with the terms of this Agreement. Except as expressly permitted by this Agreement, each party shall limit the use of, and access to, all Confidential Information of the other party to its immediate household, employees, or agents whose use of or access to such Confidential Information is necessary to fulfill the objectives of this Agreement. Each party shall use commercially reasonable efforts to prevent unauthorized disclosure, publication, display or use of any Confidential Information of the other party. Neither party shall copy any Confidential Information of the other party without the prior written consent of the other party, and shall reproduce all such notices on any copies of Confidential Information that such party is authorized to make. Neither party shall remove any copyright, proprietary rights or confidentiality notice included in or affixed to any Confidential Information of the other party. Licensee agrees that Pollen Sense may use Licensee’s name to disclose that it is a Device owner and/or licensee of Pollen Software and services in Pollen Sense’s advertising, promotion, and similar public disclosures with respect to Device or Pollen Software; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Licensee in any way endorses the Device or Pollen Software, without prior written permission of Licensee.
9.3. Upon termination or expiration of this Agreement, each party shall return to the Disclosing Party, at the request of the Disclosing Party, all Confidential Information of the Disclosing Party and certify in writing to the Disclosing Party, within ten (10) days following termination or expiration, that all such Confidential Information has been returned. Notwithstanding the foregoing, in the event of dispute, the parties may retain, until resolution of such dispute, one (1) copy of Confidential Information of the other party, and which is reasonably necessary to use for the dispute. The obligations of confidentiality shall survive any termination or expiration of this Agreement for five (5) years.
10. TERM and TERMINATION
10.1 Unless earlier terminated as provided below, the initial term of this Agreement shall be for twenty-four (24) months from the Effective Date and, unless either Party gives thirty (30) days notice of non-renewal prior to the end of the initial term, this Agreement shall automatically renew for successive (3) month periods.
10.2 This Agreement may be terminated by written notice from one party to the other party in the following circumstances: (a) either party may terminate if the other party materially breaches or fails to observe or perform any material term or condition of this Agreement (including failure to pay fees) and does not cure such breach or failure within thirty (30) days after written demand; or (b) if permitted by law, either party may terminate immediately, by providing the other written notice to that effect, if the other party makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against such other party and is not dismissed within forty-five (45) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of the other party.
11. EQUITABLE RELIEF
The covenants and agreements of Licensee in Articles 3 and 8 hereof are of a special and unique character, and Licensee acknowledges that money damages alone will not reasonably or adequately compensate Pollen Sense for any breach of such covenants and agreements. Therefore, Pollen Sense and Licensee expressly agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to other rights or remedies which Pollen Sense may have, at law, in equity, or otherwise, Pollen Sense shall be entitled to seek injunctive or other equitable relief, without posting any bond, compelling specific performance of, and other compliance with, the terms of such Articles.
12. MISCELLANEOUS
12.1. This Agreement, including EXHIBITS A, and B hereto, set forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements and understandings relating thereto. This Agreement may be executed in counterparts, each of which shall be deemed an original, but together shall constitute one and the same document. Once accepted, any reproduction of this Agreement made by reliable means (including photocopy or facsimile) shall be considered an original. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by a party, including a printed or hand-written document, e-mail or other electronic format.
12.2. No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by both Pollen Sense and Licensee. The failure of either Pollen Sense or Licensee at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision. Except as otherwise specified herein, no remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise.
12.3. All notices to be given in connection with this Agreement shall be effective upon receipt, shall be made in writing and shall be sufficiently given if personally delivered or if sent by facsimile transmission, courier or other express mail service, postage prepaid, return receipt requested and addressed to the party entitled or required to receive such notice at the address for such party set forth on the first page of this Agreement. Either party may by such notice to the other change such address.
12.4. This Agreement shall be binding upon, and inure to the benefit of, Pollen Sense and Licensee and their respective legal representatives, successors and permitted assigns. Licensee shall not assign, sublicense or otherwise transfer any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Pollen Sense. Any attempt of assignment or transfer without Pollen Sense’s prior written consent shall be void, of no effect, and a material breach of this Agreement. For purposes of the foregoing, a sale of all, or substantially all, of Licensee’s assets or a change in control of Licensee shall constitute a transfer of Licensee’s duties hereunder. There is no intended benefit to any third party associated with or implicated by the terms of this Agreement.
12.5. In the event that any provisions contained in this Agreement or any part thereof shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from this Agreement, and the remainder of this Agreement shall remain in full force and effect. The headings appearing at the beginning of the several sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.
12.6. The parties agree that this Agreement and the relations between Pollen Sense and Licensee hereby established do not constitute a partnership, joint venture, agency or contract of employment between them, or any other similar relationship.
12.7. Neither party shall be liable for any delays in the performance of any of its obligations hereunder due to causes beyond its reasonable control, including, without limitation, acts of God, civil unrest, strikes, labor disputes, and governmental demands or requirements.
12.8. The provisions of Articles 4, 6, 7, 8, 9, 11, and 12 and Exhibits A and B shall survive the expiration or earlier termination of this Agreement for any reason.
12.9. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of Utah without regard to its principles of conflicts of laws or the United Nations Convention on the International Sale of Goods.
12.10. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in the State of Utah, Salt Lake County. The parties hereby consent to personal jurisdiction and proper venue in the courts in the State of Utah, Salt Lake County.
12.11 The parties further agree that this agreement shall accrue to the benefit of and otherwise bind each party’s successors, heirs and/or proper assigns.
EXHIBIT A
Privacy Policy
Pollen Sense maintains a brick-and-mortar location or locations as well as an internet website. Our website does not collect personal information from you unless you provide it to us voluntarily or knowingly. Although our website does not require a login or account to view much of the website content, you are required to create an account with a password in order to access certain data. In addition to other services described in this Privacy Policy, Pollen Sense uses information supplied by you to provide services you have requested. For example, the information may be used to provide you with newsletters, email, and other Pollen Sense information as requested by you.
Depending on the feature or service you request or register for, Pollen Sense may collect one or more of the following types of personal identifying information: name, phone number, address, e-mail address, username, and password. You will be able to access and review the personally identifying information provided to us by logging in on our website. In addition, you can correct or change any personally identifying information by editing your profile while logged into our website.
The personally identifying information provided by you to Pollen Sense will only be used for the purpose of providing the services requested by you. In the event you would like to opt out of any service previously requested by you, you may do so by e-mailing us at support@pollensense.com.
Pollen Sense may share your personally identifying information with its brick-and-mortar physical location but will not share your personally identifying information with any other party for their use, other than for their use solely in providing services to Pollen Sense. Although we may publish reports with aggregate information to assist in our ability to adequately serve our customers, the reports will not include information about any individual user.
In order to effectively operate our website and business operations, we also need to make your information, whether personally identifiable or not, available to third parties in the following limited circumstances: (1) when you have consented to such disclosure, (2) when we have a good faith belief it is required by law, (3) when we have a good faith belief it is required to protect our rights or property, or (4) in the event of a merger, consolidation or sale or transfer of all or substantially all of Pollen Sense or its assets to the successor in interest of the same. We restrict their use of any information to their assigned tasks and subject to the limitations of this Privacy Policy.
In addition, like many companies, we may use cookies on our site to collect aggregate information. Among other things, the cookies will tell us whether you have visited our site before. The cookies will not track personal information about you or provide us with any way to contact you. Cookies are simply a good way for us to ensure a pleasant experience for our users.
Our website may also contain links to other websites, including sites that are owned or operated by us or our affiliates. The links will always take you sites that have their own privacy policies that are not subject to this Privacy Policy. You should always check the privacy policy of the site you are visiting to ensure you are aware of your rights.
This Privacy Policy may change from time to time. In the event any substantive changes are made to this Privacy Policy, all registered users will be placed on notice by e-mail via the e-mail address provided to use by the user.
Security
Pollen Sense employs security measures to protect the loss, misuse, and alteration of the information under our control. Although we make good faith efforts to store information in a secure environment, we cannot guarantee complete security.
EXHIBIT B
Terms of Use for Online/App Customers
Terms of Use:
This Terms of Use Agreement (the "Agreement") is between you and Pollen Sense, LLC ("Pollen Sense" "we", "us" and "our"). This Agreement sets forth the terms and conditions upon which we make available pollensense.com, pollenwise.com, or any subdomains or domains owned by Pollen Sense, its content, products, services, and mobile App(s) to you (collectively "Website"). Your use of the Website is expressly conditioned on your compliance with this Agreement. By checking the box that states "I have read and agree" and/or by using the Website, you are indicating that you agree with and have read the most recent version of this Agreement and agree to be bound by its terms. We reserve the right to modify this Agreement at any time without notice. Amendments to this statement will be effective when posted on our website. Your continued use of this Website following the posting of any amendment, modification or change shall constitute your acceptance thereof. As a result, we admonish you to check back often for any amendments which might impact your obligations and rights under this Agreement.
Privacy:
Our use of your information is governed at all times by our Privacy Policy, which can be found on our website and which is incorporated into this Agreement. Whenever you provide us information, you agree to: (a) provide true, accurate, current and complete information and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is, or we have reasonable grounds to suspect is, untrue, inaccurate, not current or incomplete, we may suspend or terminate your access to the Website and refuse any and all current or future use of the Website (or any portion thereof). Some portions of the Website require you to register and you may be asked to select a password to do such things. Please select a password that would not be obvious to someone trying to guess your password, and change it regularly as an added precaution. You agree to maintain the confidentiality of your password(s) and account(s), and you agree that you are fully responsible and accountable for all activities that occur under your account(s). You agree to notify us immediately of any unauthorized use of your password or an account or any other breach of security. We reserve the right to take any and all action, as we deem necessary or reasonable, to help ensure the security of the Website and any Website account, including without limitation terminating such account, or requesting additional information to authorize transactions on such account. Notwithstanding the above, we may rely on the authority of anyone accessing your account(s) or using your password(s) and in no event and under no circumstances shall we be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of Pollen Sense under this provision, (ii) any compromise of the confidentiality of your account(s) or password(s) and (iii) any unauthorized access to your account(s) or use of your password(s). You may not use anyone else's account at any time.
Risk of Loss:
All items purchased from this Website are made pursuant to a shipment contract. You agree that the risk of loss and title for such items passes to you upon our delivery to the carrier.
Typographical Errors:
In the event that a product listed on this Website is mistakenly listed at an incorrect price, Pollen Sense reserves the right to refuse or cancel any orders placed for the product or service listed at the incorrect price. Pollen Sense reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, Pollen Sense shall issue a credit to your credit card account in the amount of the incorrect price.
Prohibited Conduct:
You agree not to: (1) access or attempt to access any information, documents or material that you are not authorized to access through any means not intentionally made available through the Website; (2) disrupt or interfere with the security of, or otherwise cause harm to, the Website, material, documents, systems resources, accounts, passwords, servers or networks connected to or accessible through the Website or any affiliated or linked websites; (3) access or use the Website in any manner that could damage, disable, overburden or impair any Pollen Sense server and/or server used by Pollen Sense in connection with the Website or any network(s) connected to any Pollen Sense server and/or server used by Pollen Sense in connection with the Website; (4) use any material or documents in any manner that infringes any intellectual property rights or other rights of any party; (5) transmit unsolicited or bulk communications to any Pollen Sense account holder or to any pollensense.com or other e-mail address associated with Pollen Sense; (6) post or otherwise submit any software, programs or files that are harmful or disruptive of another's equipment, software or other property, including any corrupted files, time bombs, Trojan Horses, viruses and worms; (7) disrupt, interfere or inhibit any other user from using and enjoying the Website or other websites, material, documents or services associated with Pollen Sense; (8) violate any applicable laws or regulations related to the access to or use of the Website, and/or any portion thereof, and/or engage in any activity prohibited by this Agreement; (9) prepare, compile, use download or otherwise copy any user information and/or usage information or any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such information to any third party except for Data as previously described; (10) engage in any chain letters, contests, junk e-mail pyramid schemes, spamming, surveys or any other duplicative or unsolicited messages (commercial or otherwise); (11) use any robot, spider, scraper, or other such programmatic or automatic device, including but not limited to, automated dial-in or inquiry devices, to obtain information from the Website or otherwise monitor or copy any portion of the Website and/or (13) use any Pollen Sense domain name as a pseudonymous return email address.
Use Policies:
Pollen Sense may offer opportunities to participate in forums such as message boards, social media or product reviews (collectively "Online Community"). Pollen Sense asks that you respect our Online Community and participating individuals. Your conduct should be guided by common sense and basic etiquette. Any opinions, advice, statements, or other information that constitutes part of the content expressed or made available by third parties in the Online Community are those of the respective authors or producers and not of Pollen Sense, its shareholders, directors, officers, or employees. We may review and delete any content, in whole or in part, that in the sole judgment of Pollen Sense violates this Agreement or which might in Pollen Sense’s sole discretion be offensive, illegal, or that might violate the rights of, or harm any third parties, but Pollen Sense is under no obligation to do so. Pollen Sense does not guarantee the accuracy, integrity or quality of material submitted by third parties participating in the Online Community. Under no circumstances will Pollen Sense, its shareholders, officers, directors, or employees be held liable for any loss or damage caused by your reliance on information obtained through the Online Community. It is your responsibility to evaluate the information, opinion, advice, or other content available.
You agree that you are responsible for any posts that you make, and for any consequences thereof. You may only post and/or transmit information using your legal or user name. To further these common goals when posting any material to any Online Community, including without limitation, any statement or other content, or otherwise participating in the Online Community, you agree not to:
· Post and/or transmit any material that is unrelated to the subject matter of the Online Community;
· Violate the rights of Pollen Sense or any third party (including rights of privacy and publicity);
· Post and/or transmit any material that is or deemed by Pollen Sense to be defamatory, libelous, false, misleading or inaccurate, obscene, pornographic, indecent, abusive, vulgar, violent, bigoted, illegal, racially offensive, hateful, harassing, profane, sexually oriented, threatening, offensive, invasive of personal privacy or sexually graphic or explicit;
· Post and/or transmit information that promotes or facilitates illegal activities or piracy;
· Post and/or transmit any material (i) that you don't have the right to post or transmit under applicable law, including copyright, trademark, trade secret or securities laws, or (ii) in violation of your obligations any third party, including nondisclosure agreements;
· Post and/or transmit without authorization people's private and confidential information such as credit card numbers, social security numbers, and driver's and other license numbers.
· Falsely state or otherwise misrepresent your affiliation with a person or entity. We reserve the right to investigate and take legal action against anyone who, in our sole discretion, violates the restrictions set forth in this Agreement, including without limitation removing any offending information or material and terminating your access to the Online Community.
Third Party Content and Links to Third Party Sites:
WE MAY DISPLAY ON THE WEBSITE USER CONTENT, INFORMATION, ADVICE, INSTRUCTIONS, VIDEOS, STATEMENTS, SERVICES, PRODUCTS, AND OTHER MATERIALS FROM THIRD PARTIES, AND LINKS TO THIRD PARTY SITES. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF SUCH INFORMATION RELATING TO SUCH THIRD PARTY CONTENT, ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE. IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY THIRD PARTY CONTENT DISPLAYED ON THE WEBSITE, ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH CONTENT, ANY LINKED THIRD-PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE.
Submissions:
You agree that Pollen Sense is free to use any communication, comments, information, ideas, concepts, reviews, techniques, content or any other material you may send to us, including, without limitation, surveys, responses to questionnaires or through postings and/or submissions to the Online Community and Website without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Website and our products and services. Furthermore, by submitting any comment or other material to the Online Community and/or the Website, submitting information to us, or in responding to questionnaires, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to display, use, perform, reproduce, modify, distribute and create derivative works of such material or information submitted in any media, software, or technology of any kind now existing or developed in the future. By posting or providing any such material or information, you represent and warrant that public posting and use of such material or information by Pollen Sense will not infringe on or violate the rights of any third party.
Trademarks and Copyrights:
Pollen Sense, Pollen Sense logo, Pollen Wise, Pollen Wise logo and other marks, logos, graphics, and trade dress used on the Website are Pollen Sense’s trademarks or the trademarks of third parties, and may not be used in any manner (including in "meta-tags" or "hidden text") without our prior written approval. All the materials contained on the Website are copyrighted except where explicitly noted otherwise and are protected under national laws and international treaties throughout the world. The Website may also contain material that is subject to the copyright rights of third parties.
Digital Millennium Copyright Act Notice Policy:
We respect the intellectual property rights of others, and ask you to do the same. It is our policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Website in a way that constitutes copyright infringement, please contact us and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the URL or other specific location on the Website where the material that you claim is infringing is located; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Entire Agreement:
This Agreement is the entire understanding and agreement between Pollen Sense and you with respect to the subject matter hereof.
Last amended: July 26, 2019