Last Modified: September 26, 2024
This End User License Agreement (this “Agreement“) is a binding contract between you (“Customer,” “you,” or “your“) and Pinnacle Asset Integrity Services, LLC (“Pinnacle,” “we,” “our,” or “us“). This Agreement governs your access to and use of the SaaS Services, which you desire to access and use solely for your internal evaluation purposes during the Evaluation Period.
THIS AGREEMENT TAKES EFFECT WHEN YOU SIGN IN WITH YOUR USER CREDENTIALS CONSTITUTING CONSENT TO THIS AGREEMENT OR BY ACCESSING OR USING THE SAAS SERVICES (the “Effective Date“). BY SIGNING IN WITH YOUR USER CREDENTIALS OR BY ACCESSING OR USING THE SAAS SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE YOUR USER CREDENTIALS TO SIGN INTO THE SAAS SERVICES OR OTHERWISE ACCESS OR USE THE SAAS SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SAAS SERVICES.
1. Definitions
(a) “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the SaaS Services under the rights granted to Customer pursuant to this Agreement.
(b) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the SaaS Services.
(c) “Documentation” shall mean that information provided regarding the Software and SaaS Services, including, but not limited to, any online, electronic, or printed technical reference manuals and implementation workbooks that describe the use and operation of the Software and SaaS Services. Derivative works of the foregoing shall likewise be considered Documentation. Documentation shall be treated as Confidential Information of Pinnacle hereunder.
(d) “Evaluation Period” means the time period starting on the Effective Date and ending upon termination of the agreement pursuant to the express provisions herein.
(e) “Pinnacle IP” means the SaaS Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Pinnacle IP includes Aggregated Statistics and any information, data, or other content derived from Pinnacle’s monitoring of Customer’s access to or use of the SaaS Services, but does not include Customer Data.
(f) “SaaS Services” means the software as a service provided by Pinnacle under this Agreement as more specifically set forth in the applicable Documentation.
(g) “Software” means the object code version of any software to which Customer is provided access as part of the SaaS Services.
2. Access and Use
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Pinnacle hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the SaaS Services during the Evaluation Period solely for your internal evaluation purposes by Authorized Users in accordance with the terms and conditions herein. Pinnacle shall provide you the necessary passwords and access credentials to allow you to access the SaaS Services.
(b) Separate SaaS Agreement. If Pinnacle and Customer have executed a separate SaaS agreement intended to govern Customer’s use of the Software and SaaS Services, then such separate SaaS agreement shall constitute the complete and exclusive agreement of the parties for such use, and this Agreement shall be of no force or effect, regardless of any action by Customer personnel that would have appeared to accept the terms of this Agreement.
(c) Documentation License. Subject to the terms and conditions contained in this Agreement, Pinnacle hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Evaluation Period solely for your internal evaluation purposes in connection with your use of the SaaS Services.
(d) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the SaaS Services, any software component of the SaaS Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the SaaS Services, any software component of the SaaS Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SaaS Services, in whole or in part; (iv) remove any proprietary notices from the SaaS Services or Documentation; (v) use the SaaS Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; (vi) probe, scan, exploit or test the vulnerability or the security of the SaaS Services or Software or any system, network, or component used for providing the same or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Pinnacle may monitor Customer’s use of the SaaS Services and collect and compile data and information related to your and the Authorized Users’ use of the SaaS Services to be used by Pinnacle in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Services (“Aggregated Statistics“). As between Pinnacle and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Pinnacle. You acknowledge that Pinnacle may compile Aggregated Statistics based on Customer Data input into the SaaS Services. You agree that Pinnacle may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(f) Reservation of Rights. Pinnacle reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, Customer or any third party any intellectual property rights or other right, title, or interest in or to the Pinnacle IP.
3. Customer Responsibilities
(a) Acceptable Use Policy. The SaaS Services may not be used for unlawful, fraudulent, offensive, or obscene activity. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on www.pinnaclereliability.com from time to time.
(b) Account Use. You are responsible and liable for all uses of the SaaS Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the SaaS Services and shall cause Authorized Users to comply with such provisions.
(c) Customer Data. You hereby grant to Pinnacle a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Pinnacle to provide the SaaS Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the SaaS Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(e) Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the SaaS Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
4. Support
This Agreement does not entitle you to any support, maintenance, upgrades, or modifications for the SaaS Services.
5. Confidential Information
From time to time during the Evaluation Period, Pinnacle and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Privacy Policy
Pinnacle complies with its privacy policy available at www.pinnaclereliability.com/privacy-policy (“Privacy Policy“) in providing the SaaS Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the SaaS Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
7. Intellectual Property Ownership
(a) Pinnacle IP. As between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the Pinnacle IP.
(b) Customer Data. As between you and us, you own all right, title, and interest, including all intellectual property rights, in and to Customer Data.
(c) Feedback. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the SaaS Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
8. Disclaimer of Warranties
THE PINNACLE IP IS PROVIDED “AS IS” AND PINNACLE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PINNACLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PINNACLE MAKES NO WARRANTY OF ANY KIND THAT THE PINNACLE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification
Customer shall indemnify, hold harmless, and, at Pinnacle’s option, defend Pinnacle from and against any losses, damages, liabilities, or costs (including attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Pinnacle IP in a manner not authorized by this Agreement; or (iii) use of the Pinnacle IP in combination with data, software, hardware, equipment, or technology not provided by Pinnacle or authorized by Pinnacle in writing. In the event Pinnacle seeks indemnification or defense from Customer under this provision, Pinnacle shall promptly notify you in writing of the claim(s) brought against Pinnacle for which Pinnacle seeks indemnification or defense. Pinnacle reserves the right, at its option and in its sole discretion, to assume full control of the defense of the claim(s) with legal counsel of Pinnacle’s choice. Customer may not enter into any third-party agreement which would, in any manner whatsoever, affect Pinnacle’s rights, constitute an admission of fault by Pinnacle, or bind Pinnacle in any manner, without Pinnacle’s prior written consent.
10. Limitations of Liability
IN NO EVENT WILL PINNACLE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PINNACLE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PINNACLE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED $1,000.00.
11. Term and Termination
The term of this Agreement begins on the Effective Date continues until terminated pursuant to the Agreement’s express provisions. Pinnacle may terminate this Agreement at any time, without cause, upon written notice to Customer. Customer may terminate the agreement at any time, without cause, upon thirty (30) days’ written notice to Pinnacle. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Pinnacle IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Pinnacle IP and, if requested, certify in writing to Pinnacle that the Pinnacle IP has been deleted or destroyed. This Section 11 and Sections 5, 9, 10, 13, 14, 15, and 16 survive any termination or expiration of this Agreement.
12. Modifications
You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement, and that modified terms become effective on posting. You will be notified of modifications through posts on www.pinnaclereliability.com/terms-of-service. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the SaaS Services after the effective date of the modifications will be deemed acceptance of the modified terms.
13. Export Regulation
The SaaS Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the SaaS Services or the software or technology included in the SaaS Services to, or make the SaaS Services or the software or technology included in the SaaS Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the SaaS Services or the software or technology included in the SaaS Services available outside the US.
14. US Government Rights
Each of the software components that constitute the SaaS Services and the Documentation is a “commercial product” as that term is defined at 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. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the SaaS Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
15. Governing Law and Jurisdiction
This agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
16. Miscellaneous
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters- Pinnacle, Attn: Legal, One Pinnacle Way, Pasadena, Texas 77504, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, termination, transactional information, and other information concerning or related to the SaaS Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.