ePlant Terms and Conditions

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PLEASE READ THESE EPLANT TERMS AND CONDITIONS (“Agreement”).  BY USING OR PURCHASING THE SERVICES OR PRODUCTS (DEFINED BELOW), YOU AND ANY ENTITY YOU REPRESENT (“Customer” or “you”) AGREE TO BE BOUND BY THIS AGREEMENT WITH EPLANT, INC., A DELAWARE CORPORATION (“ePlant”).  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE SERVICES.

By agreeing to this Agreement, you represent that you have full power, capacity and authority to accept the terms of this Agreement.  If you are accepting the terms of this Agreement on behalf of an employer or another entity, you and such employer or other entity represent that you have full legal authority to bind such employer or other entity to this Agreement.  
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ePlant and Customer may be referred to in this Agreement individually as a “Party” or collectively as “Parties.”


  1. Definitions
  1. “Customer Content” means all information, including without limitation all Personal Data, records, files and data entered into, received, processed or stored by or for Customer through the Services including materials provided by Customer Users. 
  2. “Customer Users” means Customer’s personnel or others interacting with the Services for administration and other use on behalf of Customer.
  3. “Personal Data” means any information that identifies, relates to or describes an individual.
  4. “Products” means ePlant Equipment (defined below) and Customer-Owned Products (defined below). 

  1. Services
  1. The Services.  This Agreement governs the use of services provided by ePlant (collectively, the “Service” or “Services”).  Subject to the terms and conditions of this Agreement, ePlant will use commercially reasonable efforts to make the Services purchased by Customer available, and Customer agrees to receive and pay for such Services.
  2. Professional Services. The Services may include engineering, scientific or other professional services (“Professional Services”) to the extent offered and purchased by Customer.  Professional Services are subject to additional terms in the order form applicable to the respective Support Professional Services purchased by Customer.  Unless otherwise specified by ePlant, Professional Services will terminate at the earlier of termination of the Services or of the Agreement.
  3. License.  Subject to the terms and conditions of this Agreement, ePlant grants to Customer a limited, revocable, nonexclusive, non-assignable, non-transferable license and right to access and use the purchased Services and software that ePlant provides to Customer for use in connection with the Services, including in any ePlant devices provided by ePlant in connection with the Services, (“ePlant Software”) solely in the scope for which Customer has paid for the Services hereunder.  The Software is subject to all the limitations and other requirements of this Agreement regarding the Services.  Customer shall not use the Services or the ePlant Software outside the scope of this license.  Customer’s right to use Services is limited to those specific Services purchased by Customer and is subject to the terms and conditions of this Agreement (including without limitation Article 4 (Customer Use Restrictions and Responsibilities) and Article 6 (Proprietary Rights)).  The ePlant Software is licensed and not sold.  Notwithstanding the foregoing, if ePlant provides another license for the ePlant Software, such license shall apply.
  4. Third Party Services.  ePlant may host or provide certain third-party services or software on or through the Service (“Third Party Services”).  Unless otherwise agreed by ePlant in writing, Customer uses Third Party Services at Customer’s own risk, without warranties, obligations and liabilities on behalf of ePlant.  The remedies of Customer with respect to any Third Party Services will be limited to whatever remedies may be available from the third party provider of the Third Party Services.
  5. Third Party Software.  Third party software including any third party software embedded in in or provided with the Third Party Products (“Third Party Software”) is subject to the licenses and other terms provided by the third party provider, and Customer shall comply with such licenses and terms.
  6. Maintenance.  ePlant reserves the right to take down applicable servers hosting the Services and/or access to the Services to conduct maintenance. 

  1. Products
  1. ePlant Equipment.  ePlant may provide certain products or other equipment in connection with the Services for no additional charge or for an additional service charge (“ePlant Equipment”).  ePlant retains title to ePlant Equipment.  Customer shall not pledge, mortgage, subject to lien or otherwise encumber the ePlant Equipment or take any other action contrary to ePlant’s exclusive ownership thereof.  Customer shall use the ePlant Equipment solely as part of the Services.  Customer shall be responsible for any abuse, theft, neglect or damage to the ePlant Equipment, subject to normal wear and tear.  Customer shall return the ePlant Equipment to ePlant in accordance with ePlant’s instructions upon ePlant’s request at any time and upon the earlier of termination of the Agreement or the Services.  Customer shall pay ePlant for any ePlant Equipment that Customer fails to return when required.    
  2. Other Products.  ePlant may make available for purchase by Customer other ePlant products (“Customer Owned ePlant Products”) or third party products (“Third Party Products”) (collectively, “Customer-Owned Products”).  Title to the Customer-Owned Products sold hereunder passes to Customer upon delivery of the Customer-Owned Products to the carrier, from which point Customer is responsible for all risk of loss or damage.  Third Party Products include Third Party Software (defined herein); provided, however, that Third Party Software is typically licensed and not sold in which case title to the Third Party Software does not pass to Customer.
  3. Installation by EPlant.  In the event that the respective exhibit hereto or other document agreed to by ePlant indicates that ePlant will install or have installed the Products for Customer (e.g., on Customer’s equipment or at Customer’s location), ePlant will install the respective Products for Customer.  Products do not include installation unless expressly agreed in writing by ePlant or its designated installation agents.
  4. Updates.  Updates Customer shall follow ePlant’s instructions regarding any updates or reconfigurations of Products including replacing parts or exchanging Products upon ePlant’s request.
  5. Shipment and Acceptance.  Products are deemed accepted upon delivery, but may be subject to the warranty set forth in Article 8 (Warranty).  ePlant shall use commercially reasonable efforts to ship the Products in accordance with the estimated shipment date provided in ePlant’s acknowledgement.  However, ePlant’s failure to ship on the estimated shipment date shall not be deemed a breach of this Agreement and ePlant shall have no liability for any delay.  Product prices do not include cost of shipping.

  1. Customer Use Restrictions and Responsibilities
  1. Restrictions.  Customer will not, in whole or in part, (a) modify, adapt, translate, reverse engineer, make alterations to, decompile, disassemble or make derivative works of the Services or Products; (b) copy, rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Services ePlant Equipment to third parties other than providing access to Customer Users in accordance with this Agreement; (c) use the Services or Products for any illegal, unauthorized, fraudulent or injurious purpose; (d) use or permit use of the Services or Products outside of the scope purchased by Customer or outside the scope of or in violation of the terms of this Agreement or ePlant policies; (e) interfere with the proper operation of the Services; (f) impose an unreasonable or disproportionately large load on the Services; (g) use the Services or Products to interfere with or violate the security, integrity or availability of any user, network, computer system or device; (h) circumvent, disable or interfere with any security-related features of the Services or Products or features that enforce limitations on use of the Services or Products; or (i) use the Services or Products for benchmarking or to develop any service or product competitive with the Services or Products.
  2. Use by Customer Users.  Customer is responsible for the acts and omissions of the Customer Users and shall ensure that Customer Users comply with the applicable terms and conditions of this Agreement.
  3. Registration Information and Login Credentials.  Customer shall provide accurate registration information (e.g., Customer name, contact information etc.) and shall update such information promptly upon any change.  Customer will adopt and maintain security precautions for use of any login credentials for the Services (e.g., user IDs, passwords) to prevent disclosure and use by unauthorized persons, and Customer will promptly notify ePlant upon becoming aware that the security or integrity of any login credentials has been compromised.  Customer is entirely responsible for maintaining the confidentiality of Customer’s login credentials (including those of Customer Users) and for any and all activities that occur in association with Customer’s account and use of the Services, whether or not authorized by Customer.
  4. Excessive Load.  If ePlant, in its reasonable discretion, determines that Customer (including Customer Users) activity imposes an unreasonable or disproportionately large load on the Services (e.g., number or frequency of requests), ePlant may suspend Customer’s access to the Services until such activity is rectified or provide notice to Customer of such activity and terminate this Agreement if such activity continues beyond the timeframe for correction specified in such notice.
  5. Authorizations and Security.  As between Customer and ePlant, Customer is solely responsible for (a) obtaining any authorizations, consents, releases and permissions that are necessary or desirable for Customer and ePlant’s processing, use, re-use and/or dissemination of Customer Content accessible through the Services, (b) ensuring that Customer and ePlant’s use, re-use and dissemination of such Customer Content is in compliance with applicable laws and (c) using and configuring its use of the Services as needed to comply with user data access and deletion requests.  It is Customer’s, and not ePlant’s, responsibility to protect Customer’s Content, including without limitation, by implementing and maintaining reasonable data protection protocols.
  6. Violations.  ePlant may investigate any suspected violation of this Article 4 (Customer Use Restrictions and Responsibilities) and remove or disable access to any materials in violation thereof.  Customer agrees to cooperate with ePlant to remedy any such violation.
  7. Audit.  Customer shall retain records regarding use of the Service and Products.  ePlant and its auditors have the right to inspect Customer’s records and systems to verify compliance with the Agreement.  In the event that the audit reveals non-compliance, Customer shall pay the cost of the audit. 

  1. Fees and Payment

Customer agrees to pay all applicable fees and charges for the Services and Products.  Unless otherwise specified by ePlant, all such fees and charges shall be paid (a) in full in advance of commencement of the applicable Services or renewal thereof and (b) upon order for Products.  Customer will pay other charges invoiced within thirty (30) days of invoice by ePlant.  Unpaid fees and charges are subject to interest of one and one-half percent (1.5%) per month, or the maximum interest rate permitted by law, whichever is lower, plus reasonable cost of collection.  All applicable fees and charges for the Services and any other purchases are exclusive of taxes, and Customer shall pay any taxes required to be paid by Customer under applicable law relating to Services or other purchases.  If Customer makes payment by credit card, Customer agrees to be bound by the payment processing terms of ePlant’s third-party credit card processor and authorizes ePlant to provide Customer’s credit card information to such third-party credit card processor.


  1. Proprietary Rights
  1. Ownership.  ePlant (and its licensors, as applicable) retains all right, title and interest in and to the Services and all technology in any Products.  Except as expressly provided herein, ePlant and its licensors do not grant Customer (or Customer Users) any express or implied rights.  For the avoidance of doubt, ePlant’s ownership of the Services includes ownership of all ePlant Software.
  2. Customer Content and Usage Data.  Customer is solely responsible for Customer Content.  ePlant does not have responsibility to review or verify Customer Content.  ePlant may collect data regarding Customer’s use of the Services and Products as well as telemetry data (“Usage Data”).  Customer hereby grants to ePlant a non-exclusive, worldwide, royalty-free, fully-paid-up, right and license to copy, distribute, display and use the Customer Content and Usage Data.  Notwithstanding the foregoing, ePlant will provide Customer Content or Usage Data to third parties only in anonymized form except as required by law or to ePlant’s contractors and service providers. 
  3. Feedback and Usage Data.  Customer is not obligated to provide ePlant Feedback (defined below) other than as necessary to receive support regarding defaults in the Services and/or Products.  To the extent that ePlant receives from Customer (including from any Customer User) any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services, Products or any other ePlant technology (“Feedback”), Customer hereby grants to ePlant a non-exclusive, perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully-paid-up, sublicensable right and license to copy, distribute, display and create derivative works of and otherwise use such Feedback without restriction, including to improve the Services and Products and to develop, market, offer, sell and provide other services and products.

  1. Confidential Information
  1. “Confidential Information” means: (a) tangible disclosures marked as “Confidential” or “Proprietary,” or that bear any other appropriate notice indicating the confidential nature of such information, and (b) information disclosed orally or visually that is identified as “Confidential” by a disclosing Party at the time of disclosure.  The non-public aspects of the Services and Products, including its source code, underlying algorithms and associated technology, are ePlant Confidential Information regardless of whether marked and are hereby identified as confidential.
  2. General.  Each Party receiving Confidential Information (“Receiving Party”) agrees to retain in strict confidence, and use only for matters related to this Agreement, all Confidential Information disclosed by another Party (“Disclosing Party”).
  3. Exclusions.  The obligations regarding Confidential Information do not apply to information that: (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (b) the Receiving Party can demonstrate to have had rightfully in its possession and without restriction prior to disclosure hereunder; (c) is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information, as can be shown by the written records of the Receiving Party; (d) is lawfully obtained, without restriction, from a third party who has the right to make such disclosure; or (e) is released for publication by the Disclosing Party in writing.
  4. Protection of Confidential Information.  Each Party agrees to protect the other’s Confidential Information to the same extent that it protects its own confidential information of a similar nature and will take reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information to third parties.  The Receiving Party is responsible for compliance with and any breach of this Agreement by its contractors and must have, prior to providing Confidential Information of the Disclosing Party to any contractor, a written confidentiality agreement protecting such Confidential Information from unauthorized disclosure or improper use.
  5. Authorized Disclosures.  Notwithstanding anything to the contrary in this Article 7 (Confidential Information), the Receiving Party may disclose Confidential Information of the Disclosing Party as required to be disclosed by applicable law. 

  1. Warranty
  1. Services.
  1. Services Warranty. ePlant warrants only to Customer that the Services will materially conform to ePlant’s applicable written specifications for the respective Services.  
  2. Professional Services.  Unless otherwise specified in ePlant’ order form or agreement that references this Agreement, ePlant warrants to Customer that during the term of the Services (“Warranty Period”), the Services will be performed in a professional and workperson-like manner with personnel that are trained to provide such Services.
  3. Service Remedy.  If Customer reports substantial non-conformance with the warranty regarding the Services or Professional Services, ePlant shall, as Customer’s sole and exclusive remedy, make commercially reasonable efforts to: (a) provide any support included in the Services, and (b) correctly reperform the respective Service or Professional Service.  
  1. Product Warranty. 
  1. ePlant Equipment.  ePlant Equipment is provided as part of the Services and is not subject to any additional warranty.
  2. Customer-Owned ePlant Products.  In the event Customer separately purchases Customer-Owned ePlant Products, the Customer-Owned ePlant Products shall be subject to the written warranty provided by ePlant in connection with the Customer-Owned ePlant Products, or of not so specified, ePlant warrants that the Customer-Owned ePlant Products will each materially conform to Verdigris’ applicable written specifications for the respective Customer-Owned ePlant Products for up to ninety (90) days from purchase.  The sole remedy for any non-conformance of the Customer-Owned ePlant Products is for ePlant in its discretion to repair or replace the Customer-Owned ePlant Products returned to ePlant during the warranty period in accordance with the ePlant’s instructions.
  3. Third Party Products.  For Third-Party Products, any warranty is provided by the respective manufacturer of such Third-Party Product, if any, and not by ePlant. Customer shall not make any warranty claims against ePlant for Third-Party Products and shall contact the manufacturer for any warranty related to Third-Party Products.  
  1. Exclusions.  ePlant provides no warranty for the following or nor shall ePlant have any liability or claim arising from any of the following: (i) abuse or misuse of the Services or Products; (ii) software and equipment of Customer or any third party (including any Third Party Services or Third Party Products); (iii) directions, designs, plans or specifications furnished by or on behalf of Customer; (iv) unauthorized use, or use of the Services or Products in violation of this Agreement or other terms with ePlant; (v) failure to follow the instructions in the documentation or specifications provided for the Services or Products by ePlant; (vi) failure to comply with applicable law, or failure to obtain any authorizations, consents, releases or permissions that are necessary for Customer’s use of the Services or Products provided by ePlant; (vii) any data provided by Customer or third party; (viii) the business activities of Customer or third party through the use of the Services or Products; (ix) modification of the Services or Products made other than by ePlant; (x) failure to use an updated or modified Services or Products provided by ePlant, including those provided to avoid error or infringement; or (x) use of the Services or Products after termination of this Agreement (collectively, “Exclusions”).
  2. Customer Responsibility.  Customer represents and warrants that (a) Customer has the authority to enter into this Agreement and (b) Customer’s use of the Services and Products will comply with all applicable law.  Customer is solely responsible for any issues arising from any Exclusion.  Customer, and not ePlant, is solely responsible for any warranties and covenants Customer makes in connection with the Customer’s products and services as well as the Services and Products and any results thereof, and any resulting claims from any customers or other third party.  Without limiting the foregoing, Customer is responsible for verifying and validating the suitability and reliability of the Services for all of Customer’s use thereof.  Further, Customer must take prudent steps to protect against failures when the Services or results thereof is incorporated in a system or application, including providing back-up and shut-down mechanisms.  
  3. Warranty Disclaimer.  THE FOREGOING LIMITED WARRANTIES AND REMEDIES PROVIDED BY EPLANT ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY.  EXCEPT TO THE EXTENT EXPRESSLY SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EPLANT DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES, SOFTWARE, PRODUCTS OR ANY OTHER MATERIALS OR ACTIVITIES PROVIDED BY EPLANT HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

  1. Limitations of Liability
  1. IN NO EVENT WILL EPLANT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES OR PRODUCTS, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR PRODUCTS, EVEN IF THE ALLEGEDLY LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
  2. IN NO EVENT WILL THE TOTAL LIABILITY OF EPLANT IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SERVICES OR PRODUCTS, WHETHER IN CONTRACT, TORT OR OTHERWISE (COLLECTIVELY, “CLAIMS”), EXCEED THE TOTAL FEES PAID BY CUSTOMER TO EPLANT FOR THE SERVICES AND PRODUCTS THAT GAVE RISE TO THE CLAIMS IN THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE.
  3. Allocation of Risk.  The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy.  Customer and ePlant each acknowledge and agree that the limitation of liability provisions of this Section 9.3 (Allocation of Risk) reflect an informed, voluntary allocation between them of the risk associated with Customer’s use and receipt of the Services and Products and, but for this provision, ePlant would not have made the Services and Products available to Customer at the prices contemplated under this Agreement.
  4. Applicable Law.  The warranty disclaimer and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by law, or to the extent that statutory rights cannot be excluded, limited or waived, in which case the disclaimer or limitation shall be modified to disclaim and/or limit in accordance with applicable law.

  1. Indemnification
  1. ePlant Indemnity.  ePlant shall defend any action brought against Customer to the extent that it is based upon a claim that the Services, ePlant Equipment or Customer-Owned ePlant Products, as provided by ePlant to Customer under this Agreement and used within the scope of this Agreement, infringe any copyright or misappropriate any trade secret of a third party under the laws of the United States (an “Indemnity Claim”), and shall pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer.  Notwithstanding the foregoing, ePlant shall have no liability for any claim of any kind to the extent it results from any Exclusion.
  2. Sole Remedy.  The foregoing provisions of this Article 10 (Indemnification) set forth ePlant’s sole and exclusive obligations, and customer’s sole and exclusive remedies, with respect to infringement of intellectual property rights of any kind.
  3. Customer Indemnity.  Customer agrees to indemnify and hold ePlant and its directors, employees, agents, members and distributors harmless from any cost, liability or loss relating to any Exclusion(s).
  4. Indemnification Procedure.  The indemnified Party agrees to: (i) promptly notify the indemnifying Party of the claim; (ii) provide the indemnifying Party with reasonable information and assistance, at the indemnifying Party’s expense, to defend or settle such claim; and (iii) tender the indemnifying Party control of the defense or settlement of such claim, subject to the indemnifying Party promptly doing so and providing reasonable assurance of its continuing ability to do so.  The indemnified Party reserves the right to retain counsel and to participate in the defense and settlement of any such claim, which participation shall be at the indemnified Party’s expense so long as the indemnifying Party is carrying out its duty to defend.

  1. Modifications to the Agreement and Other Changes; Privacy Policy
  1. Modifications to the Agreement.  ePlant may change the Agreement by posting a revised version of the Agreement on the ePlant website, providing Customer notice in accordance with Section 13.7 (Notices) or receiving Customer’s online acceptance of a revised version provided via the ePlant website.  The modified terms will be effective upon the posting, notice or online acceptance respectively.  By continuing to use the Services after the date of modification, Customer agrees to be bound by the modified terms.
  2. Other Changes. In the event ePlant makes any material changes or updates to its commitments regarding security, confidentiality or availability, ePlant will endeavor to provide the changes or updates on the ePlant website or by providing Customer notice in accordance with Section 13.7 (Notices).  
  3. ePlant Privacy Policy.  ePlant’s privacy policy on the ePlant website discloses how ePlant handles, protects and uses Personal Data.

  1. Term and Termination
  1. Term of Agreement.  This Agreement shall continue in effect until the expiration of the term for which the Services have been purchased unless terminated earlier as provided herein (“Term”).
  2. Termination for Cause.  Either Party may, by giving written notice to the other Party, terminate this Agreement if the other Party commits a material breach of this Agreement, provided that a Party shall have ten (10) days to cure up to three breaches of non-payment and thirty (30) days to cure a breach capable of cure other than non-payment.
  3. Termination for Bankruptcy or Other Circumstances.  A Party may terminate this Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  4. Right to Suspend the Services.  ePlant reserves the right, but not the obligation, to immediately suspend Customer’s or Customer Users’ ability to access and use the Services if ePlant has reason to believe that Customer’s or Customer Users’ use of the Services is or is likely to become non-compliant with this Agreement (including for non-payment) or applicable law, or the subject of a lawsuit or material dispute.
  5. Customer Content.  Without further notice to Customer, ePlant may (but is not required to) destroy any Customer Content that still resides on ePlant’s systems thirty (30) days after the termination or expiration of this Agreement.
  6. Effect of Termination or Expiration. ePlant is not liable for any loss or damage caused by termination of the Service upon termination or expiration of the Agreement. 
  7. Survival.  The following provisions will survive any termination or expiration of this Agreement:  Article 1 (Definitions), Article 5 (Fees and Payments) (with respect to fees and other charges applicable to the Term of this Agreement), Article 6 (Proprietary Rights), Article 7 (Confidential Information), 8.4 (Customer Responsibility), 8.5 (Warranty Disclaimer), Article 9 (Limitations of Liability), Article 10 (Indemnification), Article 12 (Term and Termination) and Article 13 (General).

  1. General
  1. Assignment, Successors.  No right or license under this Agreement may be assigned or transferred by either Party, except that ePlant may transfer or assign this Agreement to any affiliate, to any successor entity, or to an acquirer of all or substantially all of the business, stock or assets of ePlant relevant to this Agreement.  Any assignment, transfer or delegation in contradiction of this provision will be null and void.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and ePlant.
  2. Publicity.  ePlant may make reasonable use of Customer’s name in ePlant’s promotional and marketing documentation identifying Customer as a user of the Services and/or customer of the Products. 
  3. Force Majeure.  Notwithstanding any other provision of this Agreement, no Party to this Agreement will be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such Party or its officers, directors, employees, agents or contractors.
  4. Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, USA and the laws of the United States applicable therein without reference to conflict of law or choice of law principles that would cause the application of laws of any other jurisdiction.  The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this Agreement.  Those who choose to access the Services from outside of California do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
  5. Jurisdiction and Venue.  The Parties agree to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any and all disputes, controversies or claims arising under, relating to or in connection with this Agreement, in any manner whatsoever, whether in contract, tort, under statute or otherwise, and including any dispute regarding the existence, validity or enforceability of this Agreement.
  6. Statute of Limitations.  Regardless of applicable law to the contrary or the applicable dispute resolution process, any claim or cause of action arising out of or related to use of the Services or under this Agreement must be filed within one (1) year after such claim or cause of action arose.
  7. Notices.  All notices required or permitted under this Agreement shall be in writing, addressed in each case to the address identified below.

To ePlant:  To the address provided on ePlant’s website or such other address as may be specified by ePlant in writing to Customer.

To Customer:  To the address provided by Customer during registration for the Service.  ePlant may provide notice to the email or physical address provided during registration at ePlant’ discretion.

  1. Export.  Customer shall not export or re-export, directly or indirectly, any Services or technology disclosed hereunder or direct product thereof to any destination prohibited or restricted by the applicable export control regulations, without the prior authorization from the appropriate governmental authorities. 
  2. Commercial Item Software.  Any use, modification, reproduction, release, performance, display or disclosure of the Services and any software provided hereunder by the U.S. or other government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
  3. Independent Contractors.  This Agreement does not create a partnership or joint venture between the Parties.  
  4. Entire Agreement; Amendments.  This Agreement constitutes the entire agreement between ePlant and Customer with respect to the subject matter hereof.  This Agreement supersedes all prior negotiations, agreements and undertakings between the Parties with respect to such matters.  No inconsistent or additional terms or conditions in any document provided by Customer, including any billing instrument, purchase orders, RFPs, bills of lading or the like shall apply to this Agreement or the activities hereunder, and any such additional terms or conditions are hereby rejected.  Except as provided in Article 11 (Modifications to the Agreement and Other Changes; Privacy Policy), this Agreement may be amended only by an instrument in writing executed by the Parties or their permitted assignees.  
  5. Waiver.  Neither Party will be treated as having waived any rights by not exercising or delaying the exercise of any right under this Agreement.

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END USER LICENSE AGREEMENT 

 

 

This copy of the ePlant App ("the Software Product") and accompanying documentation is licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. ePlant, Inc. or its subsidiaries, affiliates, and suppliers (collectively "ePlant") own intellectual property rights in the Software Product. The Licensee's ("you" or "your") license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement"). 

 

Acceptance 

YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL, USE, OR COPY THE SOFTWARE PRODUCT. 

 

License Grant 

This Agreement entitles you to install and use one copy of the Software Product. In addition, you may make one archival copy of the Software Product. The archival copy must be on a storage medium other than a hard drive, and may only be used for the reinstallation of the Software Product. This Agreement does not permit the installation or use of multiple copies of the Software Product, or the installation of the Software Product on more than one computer at any given time, on a system that allows shared used of applications, on a multi-user network, or on any configuration or system of computers that allows multiple users. Multiple copy use or installation is only allowed if you obtain an appropriate licensing agreement for each user and each copy of the Software Product. For further information regarding multiple copy licensing of the Software Product, please contact support@eplant.com.

   

Restrictions on Transfer 

Without first obtaining the express written consent of ePlant, you may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Software Product. 

 

Restrictions on Use 

You may not use, copy, or install the Software Product on any system with more than one computer, or permit the use, copying, or installation of the Software Product by more than one user or on more than one computer. If you hold multiple, validly licensed copies, you may not use, copy, or install the Software Product on any system with more than the number of computers permitted by license, or permit the use, copying, or installation by more users, or on more computers than the number permitted by license. 

 

You may not decompile, "reverse-engineer", disassemble, or otherwise attempt to derive the source code for the Software Product. 

 

You may not use the database portion of the Software Product in connection with any software other than the Software Product. 

 

Restrictions on Alteration 

You may not modify the Software Product or create any derivative work of the Software Product or its accompanying documentation. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the Software Product. You may not reproduce the database portion or create any tables or reports relating to the database portion. 

 

Restrictions on Copying 

You may not copy any part of the Software Product except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium. You may make one archival copy which must be stored on a medium other than a computer hard drive. 

 

Disclaimer of Warranties and Limitation of Liability 

UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY EPLANT, EPLANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE SOFTWARE PRODUCT. 

 

ePlant makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. ePlant makes no warranty that operation of the Software Product will be secure, error free, or free from interruption. YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. EPLANT WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE. 

 

UNDER NO CIRCUMSTANCES SHALL EPLANT, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF EPLANT OR ANY OTHER PARTY, EVEN IF EPLANT IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS EPLANT'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED. 

 

Limitation of Remedies and Damages 

Your remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the Software Product. Selection of whether to correct or replace shall be solely at the discretion of ePlant. ePlant reserves the right to substitute a functionally equivalent copy of the Software Product as a replacement. If ePlant is unable to provide a replacement or substitute Software Product or corrections to the Software Product, your sole alternate remedy shall be a refund of the purchase price for the Software Product exclusive of any costs for shipping and handling. 

 

Any claim must be made within the applicable warranty period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by ePlant to have been caused by you. All limited warranties on the Software Product are granted only to you and are non-transferable. You agree to indemnify and hold ePlant harmless from all claims, judgments, liabilities, expenses, or costs arising from your breach of this Agreement and/or acts or omissions. 

 

Governing Law, Jurisdiction and Costs 

This Agreement is governed by the laws of California, without regard to California's conflict or choice of law provisions. 

 

Severability 

If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.Â