ONPOINT ECOSYSTEMS EULA
OnPoint EcoSystems (
OnPoint) may change this End User License Agreement (
Agreement) by posting a new version without
notice to you.
The following terms of this Agreement govern Customer’s (
you) access and use of software (
embedded on OnPoint product (
Product). By using the Product Software, you agree to the terms of this Agreement between you
and OnPoint. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE AND MAY CHOOSE TO PROMPTLY
RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE (IF IN
LIKE NEW CONDITION) BY CONTACTING ONPOINT AT THE ADDRESS
This Agreement does not govern your purchase of the Product (excluding the Product Software) or your use of OnPoint’s
myOnPoint cloud and mobile services (
Services). They are governed by the OnPoint Limited Warranty and Terms of Service
Conditioned upon compliance with the terms and conditions of this Agreement, OnPoint grants you a limited, nonexclusive and nontransferable non-sublicensable license to execute one (1) copy of the Product Software (in executable form only) on a legitimately purchased Product owned or controlled by you, solely for use in conjunction with the Product and your personal and non-commercial purposes.
2. General Limitations
This is a license, not a transfer of title, to the Product Software, and OnPoint retains ownership of any and all copies of the Product Software. You acknowledge that the Product Software contains trade secrets of OnPoint, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, you shall have no right, and specifically agree not to:
(i) transfer, assign, sublicense, rent, distribute, transmit, host, outsource, lease, or disclose the Product Software to any other person or entity; or otherwise commercially exploit the Product Software;
(ii) modify or adapt the Product Software or create derivative works based upon the Product Software, or otherwise attempt to discover the source code of the Product Software or permit third parties to do the same; including removal or altering of any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software;
(iii) copy or use the Product Software for any purpose other than that described in the License above;
(iv) use the Product Software on any computer or device other than the Product owned or controlled by you;
(v) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this limitation (in which case you must first contact OnPoint);
(vi) release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of OnPoint for such release.
3. Product Software Updates
Any future upgrades, updates, releases or other additions to the functionality or code of the Product Software, if any, provided by OnPoint (collectively,
Updates), will be subject to the terms of this Agreement (unless otherwise provided in writing by
OnPoint). As solely determined by OnPoint, OnPoint reserves the right to automatically Update your Product Software to keep it
The Product Software and its structure, organization and code are valuable trade secrets and the exclusive property of OnPoint and its licensors, along with all worldwide copyrights and intellectual property rights therein. The Product Software (and all copies thereof) is licensed to you under this Agreement (not sold) and OnPoint and its licensors reserve all rights in and to the Product Software not expressly granted to you in this Agreement. Any and all suggestions, comments, feedback and recommendations about the Product Software provided to OnPoint by you shall be OnPoint’s property and deemed Confidential Information (see paragraph below) of OnPoint.
5. Term and Termination
This Agreement and the license granted hereunder become effective on the first date you use the Product Software or Product and shall continue as long as you own or control the Product, unless terminated under this section. OnPoint may terminate this Agreement at any time if you fail to comply with any term(s) herein. You may terminate this Agreement, effective immediately, by notifying OnPoint in writing of your intention to do. Upon termination, the license granted hereunder will also terminate and you must cease use of the Product Software and Product. All terms in this Agreement (except for Section 1, License) will remain in effect after such termination.
6. Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOT WITHSTANDING ANYTHING TO THE CONTRARY, ONPOINT PROVIDES THE PRODUCT SOFTWARE
AS IS AND
AS AVAILABE AND SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, CONDITIONS OF MERCHANTABITILTY, NON-INFRINGEMENT, TITLE, ACCURACY, AND
ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
ONPOINT MAKES NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE PRODUCT SOFTWARE: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER, TABLET OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE, RELIABLE, OR FREE FROM VIRUSES OR OTHER HARMFUL CODE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ONPOINT OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
7. Limitation of Liability
IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL
(1) ONPOINT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNATIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL OR OTHER INTANGIBLE LOSSES, RESULTING FROM OR RELATING TO THE SERVICES, PRODUCT SOFTWARE, OR THE PRODUCTS, EVEN IF ONPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND
(2) ONPOINT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES, PRODUCT SOFTWARE AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ONPOINT OR ONPOINT’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. ONPOINT DISCLAIMS ALL LIABILITY OF ANY KIND OF ONPOINT’S LICENSORS AND SUPPLIERS. THE SERVICES PROVIDE YOU THE ABILITY TO SCHEDULE, COLLECT INFORMATION, AND FOR SOME PRODUCT MODELS PROVIDE AUTOMATIC WEATHER BASED UPDATES (
PRODUCT DATA) FOR IRRIGATION CONTROL VIA THE PRODUCT. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL
PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE,
AS IS AND
AS AVAILABLE. WE DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT
PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE, OR THAT PRODUCT INFORMATION OR USE OF THE SERVICES OR THE PRODUCT WILL
DECREASE THE WATER CONSUMPTION OF YOUR HOME OR PROPERTY OR ENHANCE THE APPEARANCE OR VALUE OF YOUR TURF, SOD, PLANTS, BUSHES, TREES,
OR OTHER FOILAGE AND LANDSCAPE. YOU USE ALL PRODUCT INFORMATION, THE SERVICES, THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN
DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND ONPOINT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING
TO YOUR TURF, PLANTS, SOD, TREES, BUSHES AND OTHER FOLIAGE; BUILDINGS, STRUCTURES AND OTHER OBJECTS; THE COST OF IRRIGATION WATER,
SERVICE INTERRUPTIONS, MISSING OR STOLEN DATA, PRODUCT, PRODUCT PERIPHERALS, COMPUTER, TABLET, MOBILE DEVICE, AND INJURY OR DEATH
TO PERSONNEL, PETS, AGENTS, INVITEES, LICENSEES, AND BYSTANDERS IN CONNECTION WITH THIS AGREEMENT AND THE USE OF PRODUCT INFORMATION,
THE SERVICES, OR THE PRODUCT. PRODUCT INFORMATION PROVIDED BY THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR DIRECT MEANS OF
OBTAINING INFORMATION. FOR EXAMPLE, AN IRRIGATION RUN TIME SCHEDULE SET BY THE SERVICES, PRODUCT SOFTWARE OR PRODUCT IS NOT INTENDED
AS A SUBSTITUTE FOR OBSERVING THE CONDITION OF YOUR LANDSCAPE DIRECTLY.
8. Certain Exclusions
Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.
Confidential Information shall mean the Product Software and all other information disclosed to you either in writing or orally
that OnPoint indicates at the time of its disclosure as confidential, except for information which you can demonstrate: (a) is
previously rightfully known by you without restriction on disclosure prior to receiving the Confidential Information, (b) is or
becomes, other than through a breach on your part, lawfully known to you from a third-party source as a matter of right and
without restriction on disclosure, or becomes publically available; or (c) is independently developed by you without violation of
the terms of this Agreement or access to the Confidential Information. Both during the term of this Agreement and for at least 3
years after termination, you shall use your best efforts to preserve and protect the confidentiality of the Confidential Information
at all times, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose,
disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party
without the prior written consent of OnPoint. You shall not use any Confidential Information other than in the course of the
activities permitted hereunder. You shall notify OnPoint in writing immediately upon discovery of any unauthorized use or
disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with OnPoint in every reasonable
way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally required to
disclose, pursuant to a valid order issued by a court or government agency, any of the Confidential Information, then, prior to
such disclosure, you will (i) immediately notify OnPoint to allow OnPoint the opportunity to contest the disclosure, (ii) assert
the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with OnPoint to protect against
any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent
necessary to comply with the applicable legal requirements.
10. Government Users
The Product Software and user documentation qualify as
commercial items as defined at 48 C.F.R. 2.101 and 48 C.F.R. 12.212. All
Government users acquire the Software and user documentation with only those rights herein that apply to non-governmental customers.
Use of either the Product Software or user documentation or both constitutes agreement by the Government that the Product Software
and user documentation are
commercial computer software and
commercial computer software documentation, and constitutes
acceptance of the rights and restrictions herein.
11. Export Compliance.
You agree that the use of the Product Software is subject to U.S. and local export control laws and regulations. You represent that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists. You agree not to export, re-export, divert, transfer or disclose any portion of the Product Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
This Agreement, and any claim, dispute or controversy relating to this Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of conflict of law rules or principles. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in Santa Clara County, California. Each party irrevocably submits to this jurisdiction in any action or proceeding, except OnPoint may seek injunctive relief to protect its intellectual property or Confidential Information in any court having such jurisdiction.
If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
You cannot assign the rights, obligations and benefits arising under this Agreement, and any such attempt will be void and without effect.
The failure of OnPoint to require performance of any provision of this Agreement, or the waiver by OnPoint of any breach of any provision shall not prevent the subsequent enforcement of nor be deemed a waiver of any subsequent breach of such provision. All waivers by OnPoint will be effective only if made in writing.
By using the Product Software you irrevocably accept the Product Software
as is. OnPoint will have no responsibility to modify,
maintain, or support the Product Software.
You acknowledge that monetary damages alone would not be an adequate remedy for the breach of Section 2 (General Limitations) of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, OnPoint shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of the afore mentioned Section 2 of this Agreement.
The relationship of you and OnPoint established by this Agreement is that of independent contractors.
The headings of the sections used in this Agreement are inserted for convenience of reference only and shall not affect the interpretation of the respective sections of this Agreement.
Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Product Software and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. This Agreement has been written in the English language, and the parties agree that the English version will govern.
13. Users Outside the U.S.
If you are using the Product Software outside the United States, then the following shall apply: (a) You confirm that this Agreement and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Product Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
If you have questions regarding this Agreement, or wish to obtain additional information, please contact us via the following
e-mail or postal addresses:
OnPoint Customer Support
OnPoint EcoSystems 2625 Middlefield Road, Suite 827 Palo Alto, CA 94306