ESP End User License Agreement

READ THIS AGREEMENT CAREFULLY. BY USING THE PLATFORM (AS SUCH TERM IS DEFINED BELOW) YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE PORTAL.

The purpose of this ESP Platform Agreement (“Agreement”) is to set forth the terms and conditions under which Tier3 Technologies, LLC, 201 Breckenridge Lane, Suite 201, Louisville, KY 40207 (“Tier3″), at its sole discretion, will provide to you (“User”) access to Tier3’s web-based software program known as ESP (Eveready Services Platform®) (the “Platform”). The specific conditions governing User’s use of the Platform are as follows:

1. Authorization: User acknowledges and agrees that User has been designated by Tier3’s customer (“Customer”), which Customer is the licensee of the Platform, as the individual who is authorized by Customer to access the Platform. User’s acceptance of and agreement to this Agreement signifies both User’s and Customer’s agreement to the terms and conditions contained herein.

2. Grant of License: Tier3 grants to User, during the term of this Agreement as specified in Section 3 below, the nontransferable, nonexclusive right to use the Platform for the sole purpose of allowing access to system information relating to Customer’s Riverbed infrastructure for use by and for the benefit of Customer (“Services”). This right is subject to the following additional specific agreements and covenants by User and Customer concerning the use of the Platform:

(i) User will use the Platform only for the limited purpose of accessing the Services as described above, and shall not, except as expressly permitted by this Agreement, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the Platform in any medium without Tier3’s prior written consent;

(ii) User will not relicense, rent or lease the User’s access to the Platform;

(iii) User will not use the Platform for third party training, commercial time-sharing or service bureau use;

(iv) User will not alter or modify any part of the Platform other than as may be reasonably necessary to use the Platform for its intended purpose;

(v) User will access only those portions of the Platform to which User’s login permits access, and will not otherwise make the Platform available to third parties;

(vi) User will not cause or permit the disassembly, reverse compilation, or reverse engineering of the Platform or any part thereof, except as otherwise permitted by law;

(vii) User hereby acknowledges and agrees that Tier3 is the sole owner of the Platform, including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Platform that are provided by Tier3, and all intellectual property and similar rights included in or related thereto, including any trade secret rights, copyright and/or patent rights relating to the Platform (the “Tier3 IP”). Except as expressly permitted by this Agreement, User shall not sell, license, distribute, modify, publicly perform or display, transmit, publish, edit, adopt, create derivative works from, or otherwise make unauthorized use of the Platform or the Tier3 IP. Tier3 reserves all rights not expressly granted in this Agreement. User does not acquire any rights in or to the Platform or the Tier3 IP, express or implied, other than those limited rights specified in this Agreement;

(viii) User will comply with all applicable laws, including, without limitation, any and all laws in User’s relevant state(s) and locality(ies) pertaining to security, confidentiality, and privacy.

(ix) User agrees that Tier3 may make changes to or discontinue any of the media, products, or services available within the Platform, or any other aspect of the Platform, at any time, and without notice to User.

3. Term and Termination:

(a) User’s right to use the Platform (including, but not limited to, User’s login information and access) may be terminated at any time as determined by Tier3 in its sole discretion. Tier3 shall have the right, at its sole discretion, to terminate this Agreement with or without cause upon termination of access to the Platform.

(b) Upon termination of User’s access to the Platform as set forth in Section 3(a), User shall immediately cease using the Platform or any portion thereof. The warranty disclaimers and limitations of liability set forth in Section 5 and User’s non-disclosure obligations set forth in Section 6 shall survive the termination of this Agreement.

4. User Feedback: User agrees to provide Tier3 with comprehensive information regarding the Platform (“Feedback”) as soon as possible after User learns of such Feedback. Feedback shall include, but is not limited to, all information regarding any problems or defects in the Platform encountered by User. User shall transmit Feedback to Tier3 in any medium reasonably requested by Tier3. All Feedback shall become the sole and exclusive property of Tier3, may be used by Tier3 in any way without restriction or obligation to User, and shall not be used by User in any way other than as permitted or required by this Section 4. Tier3 shall be free to use for any purpose any ideas, concepts, know-how, or techniques resulting from Tier3’s access to or work with any Feedback or other information exchanged pursuant to this Agreement.

5. SPECIFIC WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY: TIER3 DOES NOT PROVIDE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE PLATFORM, INCLUDING BUT NOT LIMITED TO PERFORMANCE OR FEATURES OF THE PLATFORM. ALL WARRANTIES REGARDING THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND WHETHER STATUTORY OR OTHERWISE, ARE HEREBY DISCLAIMED BY TIER3.

THE PLATFORM IS PROVIDED “AS IS,” “AS AVAILABLE”, AND “WITH ALL FAULTS.” USER AND CUSTOMER FURTHER AGREE THAT TIER3 SHALL NOT BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY USER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF TIER3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER’S SOLE REMEDY IN THE EVENT OF ANY DISPUTE WITH TIER3 ARISING OUT OF THIS AGREEMENT OR USER’S USE OF THE PLATFORM IS TO DISCONTINUE USE OF THE PLATFORM AND TERMINATE THIS AGREEMENT. CUSTOMER’S SOLE REMEDY IN THE EVENT OF ANY DISPUTE WITH TIER3 ARISING OUT OF THIS OR ANY OTHER AGREEMENT IS TO DISCONTINUE USE OF THE PLATFORM, TERMINATE ALL AGREEMENTS AND TO RECOVER DIRECT DAMAGES IN AN AMOUNT LIMITED TO SIX MONTHS’ FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICES.

USER UNDERSTANDS AND AGREES THAT USER’S USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING INFORMATION, MATERIALS OR DATA THROUGH THE PLATFORM OR ANY REFERENCE SITES (AS SUCH TERM IS DEFINED BELOW) IS AT USER’S OWN DISCRETION AND RISK AND THAT USER OR CUSTOMER, AS APPLICABLE, WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S OR CUSTOMER’S PROPERTY (INCLUDING USER’S OR CUSTOMER’S COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM USER’S USE OF THE PLATFORM OR THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

THE WARRANTY DISCLAIMERS AND LIMITATIONS OR LIABILITY SET FORTH IN THIS SECTION 5 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

6. Trade Secrets and Confidentiality: Customer and User recognize that the Platform is confidential and proprietary to and a trade secret owned and/or licensed by Tier3. Customer and User hereby agree not to disclose any information relating to the Platform (including, but not limited to, its existence, design and performance capabilities, the results of any performance/benchmark tests, and any authorization codes or license keys) to third parties without the prior written consent of Tier3. Customer and User shall treat all information regarding the Platform and provided by Tier3 about the Platform as Tier3’s “Confidential Information”, including without limitation the Platform, documentation and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed or provided by Tier3 to Customer and User under this Agreement. Customer and User shall hold such Confidential Information in the strictest confidence and take all reasonable steps to protect such information from any use, reproduction, publication, disclosure or distribution except as specifically authorized by this Agreement.

7. Support and Updates:

(a) Tier3 shall have no obligation to support or provide support services to User relating to the Platform except as specifically provided for in a written agreement between Tier3 and Customer.

(b) Tier3 may at any time make updates, enhancements and/or any other modifications to the Platform in Tier3’s sole discretion but is under no obligation to do so. Such updates, enhancements and/or other modifications to the Platform shall be subject to all covenants and conditions of this Agreement (as this Agreement may be amended from time to time), including, but not limited to, the restrictions on User’s use of the Platform and Tier3’s disclaimer of warranties.

8. Prohibited Uses of the Platform:

(a) User agrees not to defame, harass, abuse, threaten, stalk or defraud other users of the Platform, or collect, or attempt to collect, personal information about other users or third parties.

(b) User agrees not to intentionally interfere with or damage, impair or disable the operation of the Platform or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.

(c) User agrees not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Platform, features that prevent or restrict the use or copying of any part of the Platform, or features that enforce limitations on the use of the Platform.

(d) User agrees not to (i) attempt to gain unauthorized access to the Platform or any part of it, other accounts, computer systems or networks connected to the Platform through hacking, password mining or any other means; or (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted through the Platform.

(e) User agrees not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Platform. User agrees neither to modify the Platform in any manner or form, nor to use modified versions of the Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Platform.

(f) User agrees that it will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without Tier3’s express written permission or bypass Tier3’s robot exclusion headers or other measures Tier3 may use to prevent or restrict access to the Platform.

(g) User agrees not to use any of Tier3’s logos, graphics, or trademarks as part of the link without Tier3’s express written consent.

(h) Except as otherwise expressly permitted by Tier3 in a separate written agreement between User and Tier3, User agrees not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Platform. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.

(i) User agrees not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Platform or any part thereof.

(j) User agrees not to modify, adapt, translate, or create derivative works based upon the Platform or any part thereof.

(k) User agrees not to impersonate another person or entity, or falsely state or otherwise misrepresent User’s affiliation with a person or entity.

9. Login Information: To access the Platform, User will have to utilize a login provided to User by Tier3. User represents and warrants that the information User provides to Tier3 upon registration and at all other times will be true, accurate, current, and complete. User also represents and warrants that User will ensure that this information is kept accurate and up-to-date at all times. User acknowledges, consents, and agrees that Tier3 may access, preserve and disclose User’s login information if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the terms and conditions of this Agreement or any other agreement with User or Customer; (c) respond to a claim that any content uploaded or otherwise placed within the Platform violates the rights of third parties; (d) provide certain customized features of the Platform to User, if any; (e) respond if User contacts Tier3 for any reason; or (f) protect the rights, property, or personal safety of Tier3, the users of the Platform, and/or the public.

10. Password: User will be provided with a password or will be asked to provide a password upon User’s initial login to the Platform. As User will be responsible for all activities that occur under User’s password, User should keep User’s password confidential. User is solely responsible for maintaining the confidentiality of User’s account and password and for restricting access to User’s computer, and User agrees to accept responsibility for all activities that occur under User’s account or password. If User has reason to believe that User’s login information is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of User’s login or password), User shall immediately notify Tier3. USER AND/OR CUSTOMER MAY BE LIABLE FOR THE LOSSES INCURRED BY TIER3 OR OTHERS DUE TO ANY UNAUTHORIZED USE OF USER’S LOGIN.

11. Links and Third-Party Websites: Tier3, users, or third parties may provide links on the Platform to other sites including the content therein (“Reference Sites”). Tier3 has no control over such Reference Sites or their content and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or content linked to by the Platform. Any links that may be provided by Tier3 are meant only as a convenience to User, and the inclusion of any link on the Platform does not imply Tier3’s affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT USER’S AND CUSTOMER’S OWN RISK. Tier3’s terms and policies do not govern User’s or Customer’s use of any application or website other than the Platform. User should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.

12. Indemnification; Hold Harmless: USER AND CUSTOMER AGREE TO INDEMNIFY AND HOLD HARMLESS TIER3, ITS AFFILIATES AND ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) USER’S USE OR MISUSE OF THE PLATFORM; (II) USER’S VIOLATION OF THIS AGREEMENT; (III) USER’S VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER HAS INFRINGED OR VIOLATED ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (IV) USER’S BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, OR COVENANTS; AND (V) ANY UNAUTHORIZED USE OF USER’S ACCOUNT NOT CAUSED BY TIER3. TIER3 RESERVES THE RIGHT, AT USER’S AND/OR CUSTOMER’S EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH USER AND/OR CUSTOMER IS REQUIRED TO INDEMNIFY TIER3, AND USER AND CUSTOMER AGREE TO COOPERATE WITH TIER3’S DEFENSE OF THESE CLAIMS. USER AND/OR CUSTOMER AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF TIER3. TIER3 WILL USE REASONABLE EFFORTS TO PROMPTLY NOTIFY USER OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.

13. Governing Law: This Agreement shall be governed by the laws of the Commonwealth of Kentucky, without regard to the conflict of laws principals thereof.

14. Miscellaneous: Except where specifically stated otherwise herein, this Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; provided, however, that notwithstanding the foregoing, Tier3 may modify these terms at any time, for any reason, and in any manner in its sole discretion with or without notice to the User; User is therefore encouraged to periodically review this Agreement as provided via link on the Platform. No other act, document, usage or custom shall be deemed to modify or amend this Agreement. This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by Tier3 without restriction. User agrees that no joint venture, partnership, employment, or agency relationship exists between User and Tier3 as a result of this Agreement or use of the Platform. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.

Last modified April 18, 2019
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