COPELAND COLD CHAIN
END USER LICENSE AGREEMENT
Effective June 1, 2023
This End-User License Agreement (“EULA”) is between Buyer (either an individual or an entity) (“Licensee”) and Copeland and/or its Affiliates (“Copeland”) and applies to the use of the Copeland software to which this EULA is linked, which includes computer software, firmware, associate media, materials, and documentation, provided by Copeland or incorporated into or used in connection with Copeland Products (collectively, the “Software Products”). The Software Products also include any updates, supplements, and future modifications provided by Copeland to Licensee. Licensee includes Buyer and any authorized agents, employees, or users of Buyer permitted to use the Products. Any software provided along with the Software Product that is associated with a separate end-user license agreement is licensed to Licensee under the terms of that agreement.
This EULA is intended to be used in conjunction with Copeland Cold Chain's Terms including the Terms and Conditions of Sale and of Service, both of which are incorporated herein by this reference. These terms may be found at https://copeland.com/en-us/terms. Acceptance of these terms is strictly required, and any different or additional terms or modification thereof are objected to and superseded by these terms. By installing, copying, downloading, accessing, or otherwise using the Software Product, Licensee agrees to be bound by the terms of this EULA and all other terms incorporated herein. The Software Product is protected by the copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, of the United States and other jurisdictions where this EULA is signed. The Software Product is licensed and not sold to Licensee.
1. LICENSE: This EULA grants Licensee a non-exclusive, non-transferable license to use the Software Product on a device Licensee owns, accesses, or controls, and as permitted by the usage rules set forth for Licensee’s device. The license granted to Licensee by this EULA contains the following rights: (1) Systems Software: Licensee may install and use one copy of the Software Product on a single computer, including workstation, terminal, or other digital electronic device (“Devices”); (2) Licensee may store or install a copy of the Software Product on a storage device, such as a network server, used only to install or run the Software Product on any of Licensee’s Devices using the same internal network server; however, Licensee must acquire and dedicate a license for each Device on or from which the Software Product is installed, used, accessed, displayed, or run that does not use the same internal network server. Licensee is permitted to transfer the Software Product to a difference network server solely in connection with an upgrade of its information technology systems. All rights not expressly granted to Licensee by this EULA are hereby reserved by Copeland. Licensee must be at least eighteen (18) years to use the Software Product. Licensee may only use the Software Product in a manner consistent with this EULA. Licensee may not rent, lease, lend, sell, redistribute, sublicense, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software Product. Any attempt to do so, including any alteration of any proprietary notices, is a violation of the rights of Copeland and its licensors. If Licensee breaches this restriction, Licensee may be subject to prosecution and damages. Information provided is for informational purposes only. The use of the Software Product for various purposes should not replace appropriate user judgment, as users will have the best understanding of the context in which the Software Product is being used.
2. UPGRADES & UPDATES:
a. Copeland is under no obligation to provide upgrades to the Software Product. If the Software Product is labeled as an upgrade, Licensee must be properly licensed to use a product identified by Copeland as being eligible for the upgrade in order to use the Software Product. A Software Product labeled as an upgrade replaces and/or supplements the product that formed the basis for Licensee’s eligibility for the upgrade. Licensee may use the resulting upgrade product only in accordance with the terms of this EULA. If the Software Product is an upgrade of a component of a package of software programs Licensee licensed as a single product, the Software Product may be used and transferred only as part of that single product package and may not be separated for use on more than one Device.
b. The Software Product may automatically download and install updates from Copeland from time to time. These updates are designed to improve, enhance, and further develop the Software Product and may take the form of bug fixes, new or enhanced functions, and completely new versions. These updates are provided at no extra cost to Licensee. If Licensee does not want the Software Product to be automatically updated, Licensee may be able to set its device settings to prohibit automatic updates.
3. CONFIDENTIALITY & INTELLECTUAL PROPERTY: Licensee acknowledges the Software Product contains proprietary trade secrets of Copeland and agrees to maintain the confidentiality of the Software Product using at least as great a degree of care as Licensee uses or would use to maintain the confidentiality of its own most confidential information, but in no way less than a reasonable degree of care. The Software Product and all information, documentation, and materials available on or through the Software Product are protected by trademark, copyright, and/or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of Copeland are and shall remain the exclusive property of Copeland. Nothing in this EULA shall grant Licensee the right or license to use any of the marks. All rights relating to the Software Product not expressly granted by this EULA are reserved by Copeland.
In the event any third-party claim that the Software Product or Licensee’s possession and use of the Software Product infringes that third-party’s intellectual property rights, Copeland will not be responsible for the investigation, defense, settlement, and discharge of any infringement claim.
4. WARRANTIES & LIMITATION OF LIABILITIES: THE USE OF THE SOFTWARE PRODUCT IS AT LICENSEE’S OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH LICENSEE. THE SOFTWARE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COPELAND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
COPELAND DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE PRODUCT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE PRODUCT WILL BE ACCEPTABLE OR RELIABLE, THAT THE SOFTWARE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS IN SOFTWARE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COPELAND OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PRODUCT PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. COPELAND MAKES NO WARRANTY, EXPRESS OR IMPLIED, NOR ASSUMES ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR ANY THIRD PARTY'S USE OR THE RESULTS OF SUCH USE OF ANY INFORMATION, APPARATUS, PRODUCT, OR PROCESS DISCLOSED, NOR REPRESENTS THAT ITS USE WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS. INCORRECT DATA PLACED HEREIN TO ALLOW THE APP TO OPERATE IN A POSITIVE ENVIRONMENT DOES NOT TRANSLATE TO A PROPERLY SERVICED UNIT AND CAN POSE DANGEROUS RISK TO THE UNIT OWNER OR CONTRACTOR. NEITHER COPELAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICES. LICENSEE ACKNOWLEDGES ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE A PRODUCT TO FAIL TO OPERATE OR CAUSE DAMAGE TO THE PRODUCT, LICENSEE, AND/OR THE PREMISES. NEITHER COPELAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE.
COPELAND, ITS THIRD PARTY LICENSORS AND CARRIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COPELAND WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SOFTWARE PRODUCT; (II) THE USE OR INABILITY TO USE YOUR DEVICE AS A RESULT OF THE SOFTWARE PRODUCT; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (IV) ANY OTHER MATTER RELATED TO THE SOFTWARE PRODUCT. COPELAND SHALL ONLY BE RESPONSIBLE FOR INTENTIONAL MISCONDUCT AND GROSS NEGLIGENCE, AND IN NO EVENT SHALL COPELAND'S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY ($50) DOLLARS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Certain jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to Licensee, some or all the exclusions or limitations set out in this EULA may not apply, and Licensee may have additional rights.
5. INDEMNIFICATION: LICENSEE AGREES TO BE RESPONSIBLE FOR AND DEFEND, INDEMNIFY, AND HOLD HARMLESS COPELAND, ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS, AND CONTRACTORS AND TO REIMBURSE COPELAND FOR ANY DAMAGES, LOSSES, OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND COSTS) INCURRED BY COPELAND IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF THE FOLLOWING USE OF THE SOFTWARE PRODUCT BY LICENSEE AND/OR ANY OF ITS ADDITIONAL USERS (I) MISUSE OF THE SOFTWARE PRODUCT; (II) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM MISUSE OF THE SOFTWARE PRODUCT OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; (III) BREACH OF ANY PROVISION OF THIS EULA OR ANY OF THE APPLICABLE COPELAND TERMS OR POLICIES BY LICENSEE OR ANY OTHER USER OR AUTHORIZED USER; (IV) ACCOUNT ACCESS OR ACTIVITY DUE TO FAILURE TO PROTECT LOG-ON CREDENTIALS; AND (V) ANY CAUSE OF ACTION BY ANY OF LICENSEE’S ADDITIONAL USERS, INCLUDING ANY AND ALL ALLEGATIONS, SUITS, CLAIMS, AND PROCEEDINGS (INCLUDING REASONABLE ATTORNEYS’ AND PROFESSIONAL FEES) (COLLECTIVELY, “CLAIMS”) AND ALL RELATED DAMAGES INCURRED BY LICENSEE OR COPELAND AS A RESULT OF OR ARISING FROM LICENSEE’S ADDITIONAL USER’S BREACH OR ALLEGED BREACH. IT IS UNDERSTOOD AND AGREED THAT LICENSEE, THE CUSTOMER, ASSUMES FULL LIABILITY FOR A BREACH BY ANY OF ITS ADDITIONAL USERS OF THIS EULA. IT IS UNDERSTOOD AND AGREED THAT LICENSEE ASSUMES FULL LIABILITY FOR A BREACH BY ANY OF ITS AUTHORIZED USERS OF THIS AGREEMENT AND COPELAND SHALL HAVE NO LIABILITY FOR ANY MISUSE OR ACTION BY ANY AUTHORIZED USER OR ANY OF LICENSEE’S AFFILIATES, SUPPLIERS, OR AGENTS.
6. PRODUCT CLAIMS: Copeland is responsible for addressing any claims of Licensee or any third-party relating to the Software Product of Licensee’s possession and/or use of the Software Product, including but not limited to: (1) product liability claims;
(2) any claim the Software Product fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Licensee must notify Copeland if it has, or is aware that any third-party has, any such claims. Apple® and Google® have no responsibility to address any such claim even if the Software Product was downloaded on one of their respective platforms.
7. PRIVACY: When Licensee downloads, installs, or uses the Software Product, Copeland may use automatic means to collect information about the Device and about the use of the Software Product. Licensee may be required to provide certain information about itself as a condition to downloading, installing, or the Software Product or certain of its features or functionality, and the Software Product may provide opportunities to share information about Licensee with others. Copelandmay collect information, including but not limited to, information relating to the manner or frequency of your use of the Software Product. This includes details about the Copeland product, as well as data collected as part of the services. Some data Copeland collects is relatively static, such as data about the product (for example, serial numbers and Device IDs and the Copeland model and serial number), but other data is more dynamic, like information about current and past product usage levels, information about abnormal product functioning, information about the status and location of Software Product and/or your Device. Copeland collects this data directly from Licensee and the Software Product and transmits it through the network and/or Internet services of Licensee. Monitoring may continue until Licensee disconnects the Software Products and the services are cancelled or terminated. Note, if Licensee does not allow Copeland to collect this information, Copeland may not be able to provide the full capabilities of the Software Product and other services. All information we collect through or in connection with the Software Product and the use of Copeland mobile apps and devices is subject to our Privacy Notice found at https://www.copeland.com/en-us/privacy-notice. Copeland will collect, use, and disclose Licensee’s personal information and the personal information of its Additional Users as set out in that Privacy Notice, and Licensee and its Additional Users or third parties it has granted access or control consent to Copeland doing so. Note, the Privacy Notice applies subject to requirements of local law. In the event a conflict between the Privacy Notice and applicable data protection laws, the stricter obligation applies.
8. DUAL MEDIA & BACKUP: Licensee may receive the Software Product in more than one medium. Regardless of the type or size of the medium Licensee receives, Licensee may use only one medium appropriate for Licensee’s single Device. Licensee may not use or install any other medium on another Device. Licensee may not loan, rent, lease, lend, or otherwise transfer any other medium to another for use, except as part of the permanent transfer of the Software Product. After installation of one (1) copy of the Software Product pursuant to this EULA, Licensee may keep the original media on which the Software Product was provided by Copeland solely for backup or archival purposes. If the original media is required to use the SoftwareProduct on the Device, Licensee may make one (1) copy of the Software Product solely for backup or archival purposes, so long as all copyright and other notices are reproduced and included on the back-up copy. Except as expressly provided in this EULA, Licensee may not otherwise make copies of the Software Product or the printed material accompanying the Software Product.
9. SUPPORT SERVICES: If Copeland provides Licensee with support services related to the Software Product ("Support Services"), any such Support Services shall be governed by the Copeland policies and programs described in the user manual, in "online" documentation, and/or other provided materials, including any applicable Service Agreement between Copelandand Licensee. Any supplemental software code provided as part of the Support Services shall be considered part of the Software Product and subject to this EULA. With respect to technical information Licensee provides to Copeland as part of Support Services, Copeland may use such information for its business purposes, including for product support and development. Copeland will not utilize such technical information in any form that personally identifies Licensee.
10. SOFTWARE PRODUCT TRANSFER: Notwithstanding any provision herein, Licensee may make a one-time permanent transfer of this EULA and the Software Product only directed to an end user and solely in connection with the sale of all of Licensee’s business and assets, provided the Licensee deletes all its setup files, and the recipient agrees to the terms of this EULA. This transfer must include all the Software Product (including all component parts, the media and printed materials, any upgrades, this EULA, and if applicable, the Certificate of Authenticity). Such transfer may not be by way of consignment or any other indirect transfer. The transferee of such one-time transfer must agree to comply with the terms of this EULA, including the obligation not to further transfer this EULA and Software Product.
11. GENERAL TERMS:
a. Not for Resale: The Software Product is “Not for Sale” or “NFR,” and notwithstanding other sections of this EULA, Licensee’s use of the Software Product is limited to Licensee’s own use including demonstration, test, or evaluation purposes and Licensee may not publish, display, disclose, or, except as specifically provided herein, sell or transfer (forvalue or otherwise) or copy the Software Product.
b. Terms of Use: Use of the Software Product or other features are further governed by our Terms of Use, which are available at http://www.copeland.com/en-us/terms-of-use. Any violation of such Terms of Use will be deemed a violation of this EULA. The Software Product may provide Licensee with access to Emerson’s website located at www.copeland.com (the "Website") and products and services accessible thereon, and certain features, functionality and content accessible on or through the Software may be hosted on the Website (collectively, "Content and Services"). Licensee’s access to and use of such Content and Services are also governed by our Terms of Use and Privacy Notice, both incorporated by this reference. Licensee’s access to and use of such Content and Services may require acceptance of such Terms of Use and/or to register with the Website. Licensee’s failure to do so may restrict it from accessing or using certain of the Software’s features and functionality.
c. U.S. Government Restricted Rights: The Software Product is commercial in nature, and constitutes "Commercial Items", as that term is defined in 48 C.F.R. section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. If Licensee is the U.S. Government, or this EULA is intended for a U.S. Government end user, then, consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 27.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Software Product is licensed to U.S. Government end users with only such rights as are granted to all other end users, according to the terms and conditions contained in this EULA. The manufacturer is Copeland Cold Chain LP, 8100 West Florissant Avenue, St. Louis, Missouri 63136.
d. Export Restrictions & Legal Compliance: This EULA is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the Software Product or information about the Software Product which may be imposed from time to time by the government of the United States. Licensee may not use or otherwise export or re-export the Software Product except as authorized by the United States law and the laws of the jurisdiction in which the Software Product was obtained. In particular, but without limitation, the Software Product may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. Licensee may not use the Software Product if it is located in any such country or on any such list. Licensee must not use the Software Product for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
e. Termination: The license is effective until properly terminated by Licensee, the owner, purchaser, and/or controller of the Software Product or by Copeland. Licensee may terminate at any time by permanently deleting all copies of the Software product. Licensee’s right under this EULA will terminate automatically without notice from Copeland if you fail to comply with any term of this EULA. Copeland may also terminate in the event of the dissolution or termination of existence of Licensee, or if Licensee becomes subject to any bankruptcy or insolvency proceeding which is not dismissed within ninety (90) days, or if Licensee becomes insolvent or subject to direct control by a trustee, receiver, or similar authority. Upon termination of the license, Licensee shall cease all use of the Software Product and permanently delete all copies, full or partial, of the Software Product. All representations, warranties, warranty disclaimers, indemnifications, and limitations of liability contained in this EULA shall survive the termination of this EULA; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
f. Dispute Resolution: The terms of this subsection will apply to all disputes that may arise out of, are connected with or relate to this EULA or the Software Product, subject only to the following two exceptions: (1) if Copeland reasonably believes Licensee or any of its Additional Users have in any manner acted or failed to act in any manner that may cause harm to Copeland or any third party, Copeland may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court provided that all claims by all parties in the dispute fall within the jurisdiction of the small claims court but subject to the informal resolution below. In no event will the terms of this section limit Emerson’s ability to investigate complaints or reported violations of this EULA or to take any action Copeland deems necessary and appropriate to mitigate actions against Copeland, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
i. Informal Resolution: If Licensee has any dispute with Copeland or any related third party, arising out of, relating to, or connected with the Software, you agree to contact Copeland, at the address noted below; provide a brief, written description of the dispute and contact information (including the username, if the dispute relates to an account); and give Copeland thirty (30) days within which to resolve the dispute to satisfaction. If Copeland does not resolve the dispute through good faith negotiations under this informal process, Licensee may pursue the dispute in accordance with the arbitration agreement below or in small claims court as described above.
ii. Class Action Waiver: LICENSEE HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A COURT OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING AGAINST COPELAND OR RELATED THIRD PARTIES ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS EULA; ARBITRATION CAN THUS DECIDE ONLY THE INDIVIDUAL CLAIMS; THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED.
iii. Arbitration Agreement. Any claims by Copeland, or claims by Licensee not resolved by the informal resolution procedure or in small claims court as provided above, arising out of, relating to, or connected with this EULA or the Software Product must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). This EULA and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 USC §1, et. seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. The arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided such location is reasonably convenient for you), or at such other location as may be mutually agreed by Licensee and Copeland. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your dispute(s): (1) thearbitrator, and not any federal, state, provincial, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this EULA including any claim that all or any part of this EULA is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals; (3) the arbitrator's decision shall be controlled by the terms and conditions of this EULA and any of the other agreements referenced herein that Licensee may have entered into in connection with the Services; (4) the arbitrator shall apply Delaware law consistent with the AAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (5) to the extent permitted by law, the arbitrator shall not have the power to award punitive, incidental, or consequential damages against Licensee or Copeland; (6) in the event the administrative fees and deposits that must be paid to initiate arbitration against Copeland exceed $125 USD for claims less than $10,000 or $375 for claims greater than $10,000 but less than $75,000, and Licensee is unable (or not required under the applicable Rules and Procedures) to pay any fees and deposits exceeding this amount, Copeland agrees to pay and/or forward them on Licensee’s behalf, subject to ultimate allocation by the arbitrator. Further, if Licensee can demonstrate the costs of arbitration will be prohibitive as compared to the costs of litigation, Copeland will pay as much of Licensee’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (7) with the exception of subpart (3) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, subpart (3) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Copeland shall be entitled to arbitrate their dispute. For more information on AAA and/or AAA Rules and Procedures, visit the AAA Website at http://www.adr.org.
g. Third-Party Terms and Beneficiaries: Licensee must comply with all applicable third-party terms of agreement when using the Software Product. If Licensee is using the Software Product on an Apple iOS device or on a Google Android device, Apple and Apple’s subsidiaries and Google and Google’s subsidiaries, are third party beneficiaries of this EULA and upon Licensee’s acceptance of this EULA, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce this EULA against your as a third party beneficiary thereof. Copeland affiliates are third party beneficiaries of this EULA and upon your acceptance of this EULA, Copeland affiliates will have the right (and will be deemed to have accepted the right) to enforce this EULA against Licensee as a third party beneficiary thereof.
h. Entire Agreement: This EULA shall constitute the entire Agreement between the parties relating to the license of the Software Product. Any waiver or modification of this EULA shall only be effective if it is in writing and signed by both parties. If any part of this EULA is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this EULA shall remain in full force and effect and shall be interpreted so as to reasonably effect the intention of the parties.
i. Assignability, Severability, Relationship, & Wireless or Mobile Charges: Except as provided in Section 10, Licensee’srights and obligations under this EULA are not assignable. Copeland may freely assign its rights and obligations in its sole discretion and without notice to Licensee. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns. If Copeland fails to insist upon or enforce strict performance of any provision of this EULA, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this EULA. Both parties are acting as independent contractors with respect to the activities hereunder. The Software Product will communicate information using the wireless capabilities of Licensee’s Device. STANDARD DATA FEES AND TEXT MESSAGING RATES MAY APPLY BASED ON LICENSEE’S PLAN WITH ITS INTERNET AND/OR MOBILE PROVIDER.
j. Contact Information: Copeland may be contacted at: 8100 West Florissant Ave., St. Louis, MO, USA 63136.
