Definitions. All capitalized terms used herein, including those set forth in Exhibit A, have the meanings indicated, and cognate terms have corresponding meanings.
Software License. The following provisions apply to all Licensed Software (including, if applicable, Easy Frame Saw Software, EasyFrame Production Software and Panel Bundling Software):
License Grant. Simpson Strong-Tie hereby grants, and Client hereby accepts, a nontransferable, non-assignable (except as otherwise provided in Section 16(a) of this Agreement), non-exclusive right and license to use any Licensed Software and related Documentation during the applicable Subscription Term, in each case, for Client’s Internal Business Purposes only on the Designated Systems, subject to the terms of this Agreement, including the payment of all applicable Subscription Fees. Client may License additional Licensed Software in the future by executing an Order Form provided by Simpson Strong-Tie. Client shall have no right to sublicense its rights with respect to the Licenses granted herein without Simpson Strong-Tie’s prior written consent, which may be withheld in Simpson Strong-Tie’s absolute discretion. Client may make a reasonable number of copies of the Licensed Software solely for back-up or archival purposes, which copies shall be the exclusive property of Simpson Strong-Tie. All rights to the Licensed Software not specifically granted herein are reserved to Simpson Strong-Tie or its licensors.
Electronic Delivery. All Licensed Software, including Updates, and Documentation shall be delivered electronically. The Documentation shall include, among other things, any operational instructions and technical information related to the Simpson Strong-Tie Solutions in the form generally made available by or on behalf of Simpson Strong-Tie to its other licensees.
Beta Software. Simpson Strong-Tie may, in its absolute discretion, make Beta Licensed Software (which may include, without limitation, a demonstration version of the Software) or Beta Services available to Client to use, at no charge, subject to the terms of this Agreement and any applicable Documentation. Any provided Beta Licensed Software or Beta Services are for evaluation purposes only, are provided “as-is,” are not supported, may be subject to additional terms set forth in any supplemental Exhibits, Order Forms or Statements of Work, and Simpson Strong-Tie may end the provision of any such Beta Licensed Software or Beta Services without cause upon written notice to Client.
Restrictions. Client may not: (i) disclose, sell, resell, assign, share, lease or make any Simpson Strong-Tie Solutions available to any Third Party or use the Service as a service bureau; (ii) copy, modify or make derivative works of the Simpson Strong-Tie Solutions or any portion thereof; (iii) create Internet links to the Simpson Strong-Tie Solutions or frame or mirror any portions of the Simpson Strong-Tie Solutions on any other server or wireless device; (iv) cause, aid or permit reverse engineering, reverse compilation, decompilation or reverse assembly of any component, or attempt to access any Source Code, of any Simpson Strong-Tie Solutions; (v) access the Simpson Strong-Tie Solutions to design or develop a competitive product or service; (vi) otherwise access or use the Simpson Strong-Tie Solutions in any manner that exceeds the Licenses or scope of use permitted under this Agreement; (vi) Upload any Prohibited Information or Disabling Codes; (vii) interfere with or disrupt the integrity or performance of the Simpson Strong-Tie Solutions or the data contained therein; (viii) attempt to gain unauthorized access to the Simpson Strong-Tie Solutions; (ix) use the Simpson Strong-Tie Solutions or the data generated by the Simpson Strong-Tie Solutions in violation of applicable Law; (x) remove, obscure, or alter any copyright, trademark, disclaimer, warning or proprietary rights notice included on or embedded in any part of the Simpson Strong-Tie Solutions; (xi) use the Simpson Strong-Tie Solutions in connection with any products other than the Simpson Strong-Tie® products or other products identified by the Simpson Strong-Tie Solutions or in the applicable Documentation; (xii) allow use of the Simpson Strong-Tie Solutions by anyone who has not been properly trained or who has not agreed to follow all safety procedures; (xiii) use the output or results obtained through use of the Simpson Strong-Tie Solutions without independently verifying the accuracy of all information, data, materials and output; or (xiv) install or use the Simpson Strong-Tie Solutions on more than the limited number of Devices or in any location other than the authorized locations, if applicable, specified by Simpson Strong-Tie in writing or for any purpose other than in accordance with the terms and conditions of this Agreement.
Authorized Users. Only Authorized Users may use or access the Simpson Strong-Tie Solutions. Client shall be responsible for ensuring the security and confidentiality of the Simpson Strong-Tie Solutions and any User IDs provided to Client and any passwords or other information used to access or use the Simpson Strong-Tie Solutions. Client shall not disclose User IDs or passwords to any Third Party. Client acknowledges that it shall be fully responsible for any liabilities incurred through use of any User ID and that any transactions under a User ID shall be deemed to have been performed by Client.
Client Responsibilities.
Safety and Training. Client shall be solely responsible for adopting adequate safety measures, verifying the condition of all equipment and training each person who is provided with access to the Simpson Strong-Tie Solutions, EasyFrame Products or other products used in connection with the Simpson Strong-Tie Solutions or EasyFrame Products. Simpson Strong-Tie shall not be liable or responsible for any damage, injuries or losses incurred by the use of any products that are not manufactured by Simpson Strong-Tie. Client represents, warrants and agrees that Client and each Authorized User shall comply with all applicable Laws, including the obligation to furnish or use appropriate guards for machinery parts in compliance with state and Federal OSHA standards, as well as any other safety device required by any other applicable Law. Client shall ensure that its safety measures are strictly adhered to at all times when the Simpson Strong-Tie Solutions or EasyFrame Products are in use. Except as otherwise expressly set forth in a written agreement between the parties, Simpson Strong-Tie shall have no duty or obligation to provide training services or to evaluate the safety measures or training procedures adopted by Client.
Third Party Hardware and Software. Client shall be solely responsible for the purchase, installation, maintenance and use of all Third Party Hardware and Software, other than any Third Party Hardware and Software that Simpson Strong-Tie has expressly agreed to supply pursuant in any Order Form, Exhibit or other SOW. Simpson Strong-Tie shall not be required to provide any Services relating to: (i) Third Party Hardware and Software; (ii) any interoperability of the Licensed Software with any Third Party Hardware and Software; (iii) any failure to meet any Minimum System Requirements; or (iv) resolving Client network, workstation, environmental or other problems not directly related to the Simpson Strong-Tie Solutions or EasyFrame Products.
Provision of Client Data Client shall be solely responsible for inputting, Uploading and updating all Client Data. Client shall not Upload any Client Data that has not been backed up and securely stored elsewhere in a reasonably accessible format. Simpson Strong-Tie shall not be liable or responsible for any lost data, including Client Data and any data that may be generated through use of the Simpson Strong-Tie Solutions or EasyFrame Products.
Designated Client Representative. Client shall designate an employee (“Designated Representative”) who shall be assigned the primary responsibility for communicating with and providing necessary assistance to Simpson Strong-Tie with respect to the Services provided pursuant to this Agreement. Designated Representative will be the primary point of contact for this Agreement, and shall respond promptly when contacted by Simpson Strong-Tie regarding this Agreement.
Services.
Application Services. Simpson Strong-Tie shall provide to Client any Application Services (including, if applicable, EasyFrame Cloud) identified in the Order Form, Exhibits or any other SOW, subject to the terms of this Agreement. Client may subscribe to additional Application Services in the future by executing an Order Form provided by Simpson Strong-Tie. Subject to the terms of this Agreement, Simpson Strong-Tie will make the Application Services and related Documentation available to Client via the Internet during the Term solely for Client’s Internal Business Purposes. Client shall, at its own expense, acquire, install, configure and maintain all Third Party Hardware and Software as may be required for Authorized Users to connect to and access the Application Services via the Internet.
EasyFrame Maintenance Services. If at the time of purchase of the EasyFrame Products the Client elects to purchase EasyFrame Maintenance Services and timely pays all applicable Fees, Simpson Strong-Tie shall perform the EasyFrame Maintenance Services set forth on Exhibit B, subject to the terms of this Agreement. If Simpson Strong-Tie in its absolute discretion offers to provide EasyFrame Maintenance Services to a Client that did not elect to receive the EasyFrame Maintenance Services at the time when Client purchased the EasyFrame Products, the Client may subscribe to additional EasyFrame Maintenance Services in the future by executing an Order Form provided by Simpson Strong-Tie.
Software Support Services.
Simpson Strong-Tie shall use reasonable efforts to provide technical support services to Client with respect to the operation and functionality of the Simpson Strong-Tie Solutions, which may include providing telephone support, e-mail support, Error Correction, Updates or other support (“Software Support Services”). Client may request Software Support Services by telephone or by e-mail. Simpson Strong-Tie shall use commercially reasonable efforts to provide responses to Client’s questions within a reasonable timeframe. If Client submits an Error Report to Simpson Strong-Tie, Simpson Strong-Tie will perform issue analysis to determine whether such alleged Error is an Error. If Simpson Strong-Tie confirms the existence of an Error, Simpson Strong-Tie will use reasonable efforts to perform Error Correction.
Limitations and Exclusions. Simpson Strong-Tie shall provide Software Support Services, including Error Correction, only if: (i) Client shall have paid all Fees and Expenses related to the Simpson Strong-Tie Solutions; (ii) no modifications, additions or changes to the Simpson Strong-Tie Solutions shall have been made by any Person other than Simpson Strong-Tie; (iii) Client shall have provided any information, data or assistance reasonably requested by Simpson Strong-Tie; (iv) the Licensed Software shall have been used only on the Designated Systems; (v) the Simpson Strong-Tie Solutions shall have been used only in accordance with this Agreement and the Documentation; and (vi) Client shall have installed the current release of the Licensed Software and any Updates thereto.
Ancillary Services. Simpson Strong-Tie shall perform any Ancillary Services and shall provide any Deliverables identified in the Order Form, Exhibits or any other SOW, subject to the terms of this Agreement. The Ancillary Services may include, as applicable, implementation and setup services, integration, installation, configuration, custom programming, customization, training and other Services related to the Simpson Strong-Tie Solutions or EasyFrame Products. To the extent that any SOW for Ancillary Services requires Simpson Strong-Tie to provide Deliverables to Client prior to completion of the SOW, Client shall be responsible for reviewing such Deliverables and providing feedback to Simpson Strong-Tie in accordance with the SOW. Each Party shall use commercially reasonable efforts to perform its obligations under any SOW in accordance with the time frames and other terms set forth therein. Client acknowledges that such time frames may vary if Client fails to provide the personnel, resources, feedback or other information specified in any SOW.
Requested Services and Change Requests. Client may request additional Services, or changes to the Services specified in any SOW, by delivery of a written request to Simpson Strong-Tie describing the desired changes (each, a “Change Request”). Within a reasonable time, not to exceed fifteen (15) business days, after receipt of any Change Request, Simpson Strong-Tie shall provide a written response informing Client whether such Change Request is accepted and whether it would result in an extension of the schedule for Services or any additional cost to Client (each, a “Change Order”). Simpson Strong-Tie may, upon prior Notice to Client, charge Client a fee for such review and analysis. A Change Order shall be considered binding on the Parties and effective if, within ten (10) business days after receipt of such Change Order, Client executes the Change Order provided by Simpson Strong-Tie (which, upon acceptance, shall become a new SOW).
Acceptance. Upon completion of the Services in any SOW (“Completion Date”), Simpson Strong-Tie shall send via email to the Designated Representative a notice of completion or the final Deliverables. The Services and any Deliverables provided on or before the Completion Date shall be deemed to have been accepted ten (10) business days following the Completion Date unless Client provides Simpson Strong-Tie with Notice of noncompliance that identifies with specificity any Error or Deficiency (“Notice of Noncompliance”). Simpson Strong-Tie shall have ten (10) business days following receipt by Simpson Strong-Tie of any Notice of Noncompliance to describe in detail how Simpson Strong-Tie intends to Correct the Error or Deficiency, including the time required for such Correction (the “Correction Plan”). Upon receipt of the Correction Plan, the Client shall have five (5) business days to provide any reasonable objection to the Correction Plan to Simpson Strong-Tie in writing (“Objection”). If Client timely provides any Objection to the Correction Plan, the Parties shall use commercially reasonable efforts in good faith to agree upon a revised Correction Plan. If the Client does not provide any Objection to the Correction Plan within such five (5) day period, the Correction Plan shall be deemed to have been accepted by Client. Simpson Strong-Tie shall use commercially reasonable efforts to implement any Correction Plan. Following implementation of any Correction Plan, Simpson Strong-Tie shall provide Client with notice thereof, and Client shall have ten (10) business days to accept the applicable Deliverables and Services or provide a Notice of Noncompliance, in which case the procedures set forth above in this Section 7 shall apply.
Fees and Payments.
Fees. In consideration of the Licensed Software and Services provided by Simpson Strong-Tie, Client agrees to pay all fees set forth in any SOW, including any Exhibit or Order Form (the “Fees”). Simpson Strong-Tie shall invoice Client according to the terms of any such SOW. Except as set forth herein, all payment obligations are non-cancelable, and fees paid are non-refundable. Any Services for which the fees are not set forth in any Order Form or SOW shall be paid for on a time and materials basis at Simpson Strong-Tie’s then-current hourly rates.
Expenses. Client shall reimburse Simpson Strong-Tie for all out-of-pocket expenses reasonably incurred in rendering any Services hereunder, including reasonable travel and transportation expenses, lodging, and meals (“Expenses”); provided, however, that Simpson Strong-Tie shall request and obtain prior written approval from Client for any travel Expense exceeding one thousand dollars ($1000) and any non-travel Expense exceeding five hundred dollars ($500).
Payment Terms. All invoices shall be due and payable in full no later than fifteen (15) days after the date of invoice, except as otherwise set forth in any Exhibit, Order Form or Statement of Work. Late invoices shall be subject to interest of 1.5% per month, or the maximum permitted by Law, whichever is less, plus any expenses of collection. Simpson Strong-Tie reserves the right to suspend and/or terminate access to the Simpson Strong-Tie Solutions and Services if any Fees payable hereunder are past due and Client fails to cure such non-payment within ten (10) days of receipt of Notice from Simpson Strong-Tie. Such a suspension of Simpson Strong-Tie Solutions and Services shall not relieve Client from its obligation to pay all amounts due under this Agreement.
Taxes. Fees and all other amounts set forth in this Agreement do not include any sales, property, use, value added or other taxes, levies, duties, or similar governmental assessments, including but not limited to, VAT, GST, sales, use or withholding taxes, assessable by any jurisdiction (collectively “Taxes”), all of which shall be paid by Client; provided, however, that such Taxes shall not include any tax determined based on Simpson Strong-Tie’s net income. In the event that Simpson Strong-Tie is required by applicable Law to pay or remit any Taxes, Client shall reimburse Simpson Strong-Tie.
Audit. For the sole purpose of insuring compliance with this Agreement, Simpson Strong-Tie shall have the right, at its expense, to audit Client’s use of the Simpson Strong-Tie Solutions on at least fifteen (15) business days’ advance Notice, during Client’s normal business hours and no more frequently than once each year, which audit shall not unreasonably interfere with Client’s business. Client shall provide reasonable cooperation to Simpson Strong-Tie in connection with such audit, including granting to Simpson Strong-Tie supervised access to any systems used to access or store the Simpson Strong-Tie Solutions. Any such audit shall be subject to the confidentiality provisions of Section 11.
Client Information.
Right to Use Client Information. Client shall obtain any rights, licenses, consents and permissions necessary to disclose to Simpson Strong-Tie, Upload and use the Client Information in connection with the Simpson Strong-Tie Solutions as contemplated by this Agreement. Client shall not disclose to Simpson Strong-Tie, Upload or use any Prohibited Information or any Disabling Codes. Client’s disclosure, Uploading and use of Client Information shall not violate Client’s Privacy Policy or any Law.
Simpson Strong-Tie Access to Client Information. Client shall provide Simpson Strong-Tie with all Client Information required or reasonably requested by Simpson Strong-Tie for purposes of providing the Services contemplated under this Agreement, subject to the confidentiality provisions of Section 11. Upon request from Client, Simpson Strong-Tie shall return to Client or destroy all Client documents and other tangible embodiments of Client’s Information.
Use of Deliverables. Client shall be solely responsible for its use of the Deliverables and other data and information generated through use of the Simpson Strong-Tie Solutions.
Use of Aggregated Data. Subject to all applicable Laws, Simpson Strong-Tie may capture and analyze data and information for the purpose of monitoring and improving system performance and the Simpson Strong-Tie Solutions. Client agrees that Simpson Strong-Tie shall exclusively own all Aggregated Data and hereby assigns to Simpson Strong-Tie any of Client’s right, title or interest in or to any Aggregated Data.
Ownership. As between the Parties, Client shall own all right, title and interest in and to the Client Information and all Intellectual Property Rights related thereto. As between the Parties, Simpson Strong-Tie or its Affiliates and licensors, as applicable, shall own all right, title and interest in and to the Simpson Strong-Tie Solutions, Services and Work Product, and any revisions, modifications, customizations, improvements, enhancements and derivative works thereof, and all Intellectual Property Rights related thereto (collectively, the “Simpson Strong-Tie Technology”). If title to any of the Simpson Strong-Tie Technology does not, by operation of law, vest in Simpson Strong-Tie, Client hereby assigns to Simpson Strong-Tie, or its designee, all right, title and interest in and to the Simpson Strong-Tie Technology. For avoidance of doubt, the foregoing shall not be construed to transfer to Simpson Strong-Tie any right, title or interest in or to the Client Information. Simpson Strong-Tie retains all rights not expressly granted to Client hereunder.
Confidentiality. Neither Party shall disclose the other Party’s Confidential Information to any Third Party, except as authorized by this Agreement. Each Party may disclose the other Party’s Confidential Information only to those of its Affiliates, employees and contractors who have a need to know such information and who have previously agreed in writing to be bound by confidentiality and nondisclosure obligations consistent with and no less restrictive than the terms of this Agreement. Each Party shall treat the other Party’s Confidential Information with reasonable care and at least the same degree of care as it accords its own Confidential Information. No violation of this Section shall occur by reason of a disclosure of Confidential Information as required by Law, including in response to a valid order by a court or other governmental body, provided that the Party subject to such order shall have provided the other Party with prior Notice of such disclosure in order to permit it to seek confidential treatment of such information, and provided further that the Party making such disclosure has been advised by counsel that such disclosure is required by Law.
Term and Termination.
Term. This Agreement shall remain in effect for the Initial Term and any Renewal Term, subject to Sections 12(b) and 12(c) below. On each anniversary of the Effective Date, this Agreement shall automatically renew for additional terms of one (1) year (each, a “Renewal Term”) unless either Party provides Notice to the other Party at least one hundred twenty (120) days’ prior to the expiration of the Initial Term or Renewal Term, as applicable, of its intention not to renew this Agreement.
Termination With Cause. Either Party may terminate this Agreement upon Notice to the other Party if the other Party (a) breaches any material representation, warranty or obligation of this Agreement, which breach has not been substantially cured within thirty (30) days after such Notice has been provided or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Simpson Strong-Tie may suspend access to the Simpson Strong-Tie Solutions or Services until any breach by Client shall have been cured. If Client terminates this Agreement with cause pursuant to this Section 12(b), Simpson Strong-Tie will refund any Subscription Fees paid in advance by Client for the remaining Subscription Term, if applicable.
Termination for Nonpayment. If Client fails to pay when due any Fees or Expenses and does not cure such breach within ten (10) days after Notice has been provided to Client, Simpson Strong-Tie may terminate this Agreement.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) each Party shall return to the other Party or destroy all of the other Party’s documents and materials (including any Software and all tangible embodiments of any Confidential Information); (ii) Simpson Strong-Tie shall immediately cease performing Services; (iii) Client and all Authorized Users shall immediately cease using any of the Simpson Strong-Tie Solutions; and (iv) Client shall promptly pay to Simpson Strong-Tie any undisputed amounts owed under this Agreement, including any unpaid Fees or Expenses. Following each Party’s compliance with such return or destruction, as applicable, each Party shall provide the other Party with a statement signed by its one of its executive officers certifying that such destruction or return shall have been completed pursuant to this Section 12(d).
Subscription Term. Except as otherwise provided in any applicable Order Form: (i) EasyFrame Subscriptions are purchased for the applicable Subscription Term stated in the applicable Order Form and, subject to Sections 12(b) and 12(c) above, such Subscription Term cannot be terminated earlier than its scheduled termination date; (ii) each Subscription Term will automatically renew for an additional Subscription Term of one (1) year, unless either Party gives written notice to the other Party at least one hundred twenty (120) days prior to the end of the then-current Subscription Term; and (iii) additional subscriptions may be added at the same Client location by Client or its Affiliates during a Subscription Term and shall be co-terminated and prorated for the remainder of the applicable Subscription Term.
Survival. Sections 4, 5, 8, 9(d), 9(e), 10, 11, 12(d), 13(f), 13(g), 14, 15 and 16 shall continue in full force and effect notwithstanding, and shall survive, any termination of this Agreement.
Limited Warranty and Disclaimer of Warranties
Limited Warranty. For the Limited Warranty applicable to the EasyFrame Products, see www.strongtie.com/information/limited-warranties.
Disclaimer of Warranty. SIMPSON STRONG-TIE MAKES NO WARRANTY WITH RESPECT TO THE SIMPSON STRONG-TIE SOLUTIONS, OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED BY SIMPSON STRONG-TIE, ALL OF WHICH ARE DELIVERED “AS IS” AND WITH ALL FAULTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SIMPSON STRONG-TIE OR ANY OF ITS LICENSORS, DEALERS, DISTRIBUTORS, EMPLOYEES OR AGENTS SHALL IN ANY WAY MODIFY THIS DISCLAIMER OF WARRANTY. SIMPSON STRONG-TIE SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, WORKMANLIKE EFFORT, NON-INFRINGEMENT, OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. SIMPSON STRONG-TIE MAKES NO REPRESENTATION OR WARRANTY THAT THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS WILL MEET CLIENT’S REQUIREMENTS, WILL BE FREE FROM ERRORS, THAT THE OUTPUT OR RESULTS WILL BE ACCURATE, RELIABLE OR COMPLETE, OR THAT CLIENT’S USE OF THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS WILL BE UNINTERRUPTED OR SECURE. CLIENT ASSUMES ALL RISK RELATED TO THE SUITABILITY, USE, ACCURACY, QUALITY, AND PERFORMANCE OF THE SIMPSON STRONG-TIE SOLUTIONS AND EASYFRAME PRODUCTS. CLIENT ACKNOWLEDGES THAT SIMPSON STRONG-TIE DOES NOT HAVE CONTROL OVER ITS USE OF THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS, AND SIMPSON STRONG-TIE DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH ANY USE OF THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS. ANY BETA LICENSED SOFTWARE, BETA SERVICES OR OTHER PRODUCTS, SOFTWARE OR SERVICES PROVIDED FREE OF CHARGE BY SIMPSON STRONG-TIE ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT HAS BEEN ADVISED TO ADOPT APPROPRIATE SAFETY MEASURES, TO TRAIN ALL PERSONS WHO USE THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS, AND TO REVIEW AND CONFIRM THE APPROPRIATENESS AND ACCURACY OF ALL INPUT AND OUTPUT OF THE SIMPSON STRONG-TIE SOLUTIONS (INCLUDING THE FILES, TABLES, DRAWINGS AND INFORMATION CONTAINED THEREIN) AND THE PERFORMANCE AND RESULTS THAT MAY BE OBTAINED THROUGH ANY USE OF THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS (INCLUDING ANY WOOD MEMBERS, CUTS AND MARKINGS PRODUCED THROUGH USE OF THE SIMPSON STRONG-TIE SOLUTIONS). THE SIMPSON STRONG-TIE SOLUTIONS AND THE EASYFRAME PRODUCTS ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY IN ACCORDANCE WITH ALL APPLICABLE SAFETY MEASURES AND LAWS. THE SIMPSON STRONG-TIE SOLUTIONS ARE NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT, INDEPENDENT DESIGN OR ANALYSIS. CLIENT IS SOLELY RESPONSIBLE FOR THE TRAINING, SUPERVISION, MANAGEMENT, AND CONTROL OF THE PERSONS USING THE SIMPSON STRONG-TIE SOLUTIONS AND THE EASYFRAME PRODUCTS, WHICH RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, DETERMINING WHETHER AND HOW TO USE THE SIMPSON STRONG-TIE SOLUTIONS AND EASYFRAME PRODUCTS, IMPLEMENTING SAFETY AND QUALITY ASSURANCE MEASURES AND ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TRAINING USERS AND TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OR RESULTS, INCLUDING ALL PRODUCTS CREATED BY USING THE SIMPSON STRONG-TIE SOLUTIONS OR EASYFRAME PRODUCTS. SIMPSON STRONG-TIE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO, AND SHALL NOT BE LIABLE FOR, ANY INFORMATION, REPORTS, DESIGNS, OUTPUT, MATERIALS OR PRODUCTS OBTAINED FROM USE OF THE SIMPSON STRONG-TIE SOLUTIONS, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ACCURACY, COMPLETENESS, FREEDOM FROM ERRORS OR ADEQUACY OF DESIGN.
THE SIMPSON STRONG-TIE SOLUTIONS AND EASYFRAME PRODUCTS ARE INTENDED TO BE USED, AND MAY BE USED, ONLY IN CONJUNCTION WITH THOSE SIMPSON STRONG-TIE® SAW BLADES, INK OR OTHER PRODUCTS, IF ANY, REFERENCED BY THE SIMPSON STRONG-TIE SOLUTIONS OR IN THE APPLICABLE DOCUMENTATION. SUBSTITUTION OR USE OF ANY OTHER PRODUCTS MAY CAUSE DAMAGE TO PERSONS OR PROPERTY, EVEN IF ANY SUBSTITUTE PRODUCT CLAIMS TO BE EQUIVALENT TO THE SIMPSON STRONG-TIE® PRODUCTS. CLIENT AND EACH AUTHORIZED USER SHALL REVIEW THE CURRENT APPLICABLE SIMPSON STRONG-TIE CATALOG AND INTERNET WEBSITE AT WWW.STRONGTIE.COM FOR PRODUCT INFORMATION, INSTRUCTIONS, AND OTHER IMPORTANT INFORMATION ABOUT THE SIMPSON STRONG-TIE SOLUTIONS AND THE EASYFRAME PRODUCTS. SIMPSON STRONG-TIE MAY UPDATE AND REVISE THE INFORMATION ON ITS WEBSITE AND CATALOGS FROM TIME TO TIME IN ITS ABSOLUTE DISCRETION. TO OBTAIN THESE CATALOGS OR OTHER INFORMATION, PLEASE CONTACT SIMPSON STRONG-TIE.
Limitation of Liability. IN NO EVENT WILL SIMPSON STRONG-TIE, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR REPRESENTATIVES (“REPRESENTATIVES”) BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, USE, REVENUE, OR DATA, OR THE LIKE), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE, OR ACCURACY OF THE DATA GENERATED BY, OR OUTPUT OR RESULTS PRODUCED FROM, USE OF THE SIMPSON STRONG-TIE SOLUTIONS, DOCUMENTATION OR EASYFRAME PRODUCTS, EVEN IF SIMPSON STRONG-TIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY LIABILITY OF SIMPSON STRONG-TIE OR ITS REPRESENTATIVES ARISING OUT OF OR RELATING TO THE SIMPSON STRONG-TIE SOLUTIONS, DOCUMENTATION, EASYFRAME PRODUCTS, OR THE PERFORMANCE THEREOF, SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE (IF ANY) FOR SUCH SIMPSON STRONG-TIE SOLUTIONS IN THE PRECEDING TWELVE MONTH PERIOD. THE WARRANTY DISCLAIMER (SECTION 13) AND LIMITATION OF LIABILITY (SECTION 14) ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIMPSON STRONG-TIE AND CLIENT.
Indemnification. Client shall indemnify, defend, and hold harmless Simpson Strong-Tie and its Representatives for all Claims arising out of or relating to: (a) Client’s use of the Simpson Strong-Tie Solutions, EasyFrame Products or Documentation; (b) any breach of any term of this Agreement by Client; and (c) any acts or omissions of Client.
General Provisions.
Assignment. Client may not assign or transfer its rights or delegate its duties hereunder, whether by operation of law or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, without Simpson Strong-Tie’s prior written consent, which shall not be unreasonably withheld or delayed. It shall be reasonable, however, for Simpson Strong-Tie to refuse to assign this Agreement to a third party that competes either directly or through an Affiliate with Simpson Strong-Tie. In connection with such refusal, Simpson Strong-Tie may terminate this Agreement upon written notice and shall refund Client any prepaid fees covering the remainder of any Subscription Term for the period after the effective date of termination. This Agreement shall be binding on each Party’s successors and permitted assignees.
Subcontract of Services. Simpson Strong-Tie may subcontract certain portions of the Services to be performed by Affiliates or other Third Parties in connection with this Agreement, provided that no such arrangement shall relieve Simpson Strong-Tie of any of its obligations hereunder.
Change in Services. Simpson Strong-Tie has the right to change, modify, add to or remove any part of the Simpson Strong-Tie Solutions or Services, provided that the basic functionality and quality of the Simpson Strong-Tie Solutions and Services are not materially diminished. Simpson Strong-Tie may also offer to Client new or improved features or functionality of any Simpson Strong-Tie Solutions, provided that Simpson Strong-Tie has absolute discretion to charge an additional fee for any such features or functionality, in which case the fees and terms related to such features or functionality shall be set forth in the applicable Order Form.
Force Majeure. Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a Party’s reasonable control, including disruption of Internet access or public infrastructure, the affected Party, upon giving prompt Notice to the other Party, shall be excused from such performance to the extent of such condition.
Governing Law. This Agreement is made and shall be governed by and construed in accordance with the Laws of the State of California, excluding its choice of law principles. In any action or proceeding to enforce rights under this Agreement, the prevailing Party shall be entitled to recover all of its reasonable costs and attorney fees, including any expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding.
Interpretation. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply to the interpretation of the Agreement. The headings of sections herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction or interpretation of any provision hereof. Whenever the context requires, the use in this Agreement of the singular number shall be deemed to include the plural and vice versa, and each gender shall be deemed to include each other gender. References herein to sections refer to sections of this Agreement, except as otherwise stated. For purposes of this Agreement, each of the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” the word “any” shall be deemed to be followed by the phrase “and all,” and the word “terms” shall be deemed to be followed by the phrase “and conditions.”
Independent Contractors. The Parties are and shall be independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither Party shall make any warranties or representations on behalf of the other Party.
Notice. All notices shall be in writing and sent by regular mail, certified mail, overnight courier, facsimile (if confirmed by mail), or delivered personally to the addresses indicated in the signature block of the applicable Order Form, or such other address as either Party may indicate by at least ten (10) days prior notice to the other Party. Except as otherwise specified by a Party, notices shall be sent to the attention of the person identified in the signature block of the applicable Order Form. Notice shall be effective on the date shown on the delivery receipt or facsimile confirmation or, in the case of regular mail, actual receipt.
Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The Parties agree to reform or replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
No Third Party Beneficiaries. Simpson Strong-Tie and Client agree that, except as otherwise expressly provided in this Agreement, there shall be no Third Party beneficiaries to this Agreement.
Export. Client acknowledges that the Simpson Strong-Tie Solutions and EasyFrame Products may be subject to United States export controls. Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export of the Simpson Strong-Tie Solutions or EasyFrame Products, or any technical information about the Simpson Strong-Tie Solutions or EasyFrame Products, without fully complying with this Agreement, the United States Export Administration Act, any regulation thereunder, and all other applicable Laws.
Use of Marks. No right to use any of the Simpson Strong-Tie Marks is granted under this Agreement. Each of Simpson Strong-Tie and Client reserves all right, title and interest in their respective Marks, and any goodwill associated therewith.
Publicity. Neither Party shall issue publicity or general marketing communications concerning the other Party without such other Party’s prior written approval.
Dispute Resolution. If any controversy, dispute or claim arises between the Parties with respect to this Agreement, the Parties shall make good faith efforts to resolve such matters informally. In the event a dispute arising out of or relating to this Agreement is not settled between the Designated Representatives for the Parties, then the Parties shall escalate the dispute for resolution by authorized executive officers of Simpson Strong-Tie and Client. If the dispute is not resolved informally, the Parties agree that any disputes, Claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration as set forth below. Any mediation or arbitration shall be initiated and conducted in San Francisco, California, and any arbitration shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the Effective Date of this Agreement, including Rules 16.1 and 16.2 of those Rules. Either Party may commence mediation by providing to JAMS and the other Party a written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The Parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their Affiliates, agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either Party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the Parties so desire. At no time prior to the Earliest Initiation Date shall either Party initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the Parties, including Section 16(o) below. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements of this Section. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The Parties will take such action, if any, required to effectuate such tolling.
Equitable Remedies. The Parties acknowledge that a violation of Section 3 (Restrictions) or Section 11 (Confidentiality) of this Agreement by Client will cause irreparable harm to Simpson Strong-Tie which would not be adequately compensated by monetary damages, and that in addition to other relief, Simpson Strong-Tie shall be entitled to initiate a court action and obtain injunctive relief, without the necessity of posting a bond or other security, to prevent any actual or threatened violation of any such provision.
Simpson Strong-Tie Privacy Policy. The parties acknowledge that Simpson Strong-Tie may collect personal information in connection with the performance of Services and that such information will be governed by the Simpson Strong-Tie Privacy Policy (http://www.simpsonmfg.com/privacy-policy/us-en.html).
Entire Agreement; Waiver. This Agreement (including any Exhibits, Order Forms and SOWs) and any signed written agreement that incorporates this Agreement by reference sets forth the entire understanding and agreement of the Parties, and supersedes any oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement. Only a subsequent agreement signed by both Parties may change this Agreement. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach. The terms of any purchase order or other ordering document issued by Client in connection with this Agreement that are in addition to or inconsistent with the terms of this Agreement shall not be binding and shall not be deemed to modify this Agreement unless agreed to in writing by an authorized representative of Simpson Strong-Tie. In the event of any conflict or inconsistency in the interpretation of this Agreement, such conflict or inconsistency shall be resolved by giving precedence first to the applicable Order Form, then to the body of this Agreement, then to the Exhibits, then to any other applicable SOW, unless otherwise expressly provided in such documents.
EXHIBIT A to EstiFrame Technologies Software License and Services Agreement
DEFINITIONS
“Acceptance Date” means the date when any Licensed Software or Services shall be deemed to have been accepted pursuant to Section 7.
“Affiliate” of a specified Person means any Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the specified Person.
“Aggregated Data” means data that contains no Personally Identifiable Information or any other data that identifies Client or any other Person.
“Agreement” means the EstiFrame Technologies Software License and Services Agreement to which this Exhibit is attached, and any Exhibits, Order Forms and Statements of Work.
“Ancillary Services” means the Services (other than EasyFrame Maintenance Services or Software Support Services) set forth on any Exhibit, Order Form or other Statement of Work that requires Simpson Strong-Tie to perform implementation, setup, installation, configuration, integration, training, consulting, customization, design, development, testing or other Services related to the Simpson Strong-Tie Solutions.
“Application Services” means Simpson Strong-Tie’s provision of Software to Client as a Service pursuant to any Exhibit, Order Form or other Statement of Work, which Application Services may include, if applicable, EasyFrame Cloud.
“Authorized Users” means any of Client’s employees who shall have been assigned or provided with access to a User ID for the Application Services or who shall have been provided with access to any Licensed Software pursuant to a License and who have been properly trained by Client on all safety measures adopted or recommended by Client with respect to the Simpson Strong-Tie Solutions, saws or other products used in connection with the Simpson Strong-Tie Solutions; provided, however, that Client shall not exceed the number of User IDs or Devices specified on the applicable SOW, if applicable.
“Beta Licensed Software” means Licensed Software that may be made available to Client to try at its option at no additional charge and is designated as beta, pilot, limited release, developer preview, non-production, evaluation, demonstration, or by a similar description.
“Beta Services” means Services or functionality that may be made available to Client to try at its option at no additional charge and is designated as beta, pilot, limited release, developer preview, non-production, evaluation, demonstration, or by a similar description.
“Change Order” has the meaning ascribed to it in Section 6(e).
“Change Request” has the meaning ascribed to it in Section 6(e).
“Claims” means any claims, demands, actions, causes of action, prosecutions, suits, proceedings, damages, assessments, losses, liabilities, judgments, settlements, awards, fines, sanctions, taxes, levies, penalties, interest, charges, costs and expenses, including any reasonable attorney fees, expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding.
“Client Data” means any of Client’s data that is Uploaded by an Authorized User for use in connection with the Simpson Strong-Tie Solutions.
“Client Information” means any information provided by Client to Simpson Strong-Tie.
“Confidential Information” means the terms of this Agreement and any information or materials disclosed, directly or indirectly, either orally, in writing or through visual inspection, which information includes, without limitation, financial information, business information, product information, technical information, customer information, operating practices, pricing and fee structures, and any other proprietary and confidential information; provided, however, that Confidential Information does not include any of the foregoing that: (i) has become generally known to the public or to other Persons who can obtain economic value from disclosure or use of the information; (ii) was in the Recipient’s possession or known by Recipient prior to the date of disclosure by the Disclosing Party, as proven by reasonably satisfactory evidence; (iii) becomes lawfully available to the Recipient from a source other than the Disclosing Party or a Person under a duty of nondisclosure to the Disclosing Party; (iv) is required to be disclosed by Recipient to comply with applicable Laws; or (v) is authorized for public dissemination by an authorized executive officer of Disclosing Party, as evidenced by written records.
“Control” (including the phrases “Controlled by” and “under common Control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Correct” means, with respect to an Error or Deficiency, making a modification or addition to the Simpson Strong-Tie Solutions that, when made or added to the Simpson Strong-Tie Solutions, renders the Simpson Strong-Tie Solutions in substantial conformity with the applicable Documentation and/or SOW.
“Correction Plan” has the meaning ascribed to it in Section 7.
“Deficiency,” with respect to Services, means any material failure of the Services, including any Deliverables, to comply substantially with the applicable SOW or the terms of this Agreement.
“Deliverables” means any report or other documents or materials that Simpson Strong-Tie is obligated to provide to Client pursuant to any SOW.
“Designated Representative” has the meaning ascribed to it in Section 5.
“Designated System” means the computer server(s) and systems that are located on-site at a specific Client location, as identified in any Exhibit, Order Form or other Statement of Work; provided that such servers and systems shall meet or exceed the Minimum System Requirements.
“Device” means each device that has been authorized by Simpson Strong-Tie to access the Simpson Strong-Tie Solutions.
“Disabling Codes” means any malicious codes, expiration codes, response codes, viruses, programming routines, worms, date or time bombs, back doors, booby traps, trap doors or other codes placed therein for the purpose of causing Software to cease operation, or to damage, interrupt or interfere with use of or access to Software or any associated hardware or data.
“Disclosing Party” means a Party that makes Confidential Information available to the other Party.
“Documentation” means any user manuals and documentation, user guides and any other operating, training, and reference manuals relating to the use of the Simpson Strong-Tie Solutions, and any instructions or on-line help files supplied or made available by Simpson Strong-Tie to Client.
“EasyFrame Cloud” means Simpson Strong-Tie’s EasyFrame Cloud Service, which Client may subscribe to as a Software as a Service pursuant to an Exhibit, Order Form or SOW.
“EasyFrame Maintenance Services” means the Services set forth on Exhibit B and, if applicable, on any other Exhibit, Order Form or Statement of Work that requires Simpson Strong-Tie to perform Services related to the repair and maintenance of Client’s EasyFrame Products.
“EasyFrame Production Software” means Simpson Strong-Tie’s EasyFrame Production Software, which Client may subscribe to as Licensed Software pursuant to an Exhibit, Order Form or SOW.
“EasyFrame Products” means the EasyFrame Automated Marking System products purchased directly from Simpson Strong-Tie by Client; provided, however, that the EasyFrame Products do not include any Third Party Hardware and Software or other products that are not manufactured by Simpson Strong-Tie.
“EasyFrame Saw Software” means Simpson Strong-Tie’s EasyFrame saw Software that is installed on certain EasyFrame Automated Marking System products purchased directly from Simpson Strong-Tie by Client; provided, however, that the EasyFrame Saw Software does not include any Third Party Hardware and Software that are not manufactured by Simpson Strong-Tie.
“EasyFrame Subscription” means a Client subscription for EasyFrame Cloud or EasyFrame Production Software, as applicable, and as identified on any Exhibit, Order Form or Statement of Work.
“Error” means any reproducible and verifiable failure of the Simpson Strong-Tie Solutions to operate in all material respects in accordance with the Documentation.
“Error Report” means any report of an Error by Client to Simpson Strong-Tie that shall have been submitted by email to the applicable e-mail address provided by Simpson Strong-Tie to Client.
“Exhibit” means any of the Exhibits attached to this Agreement.
“Expenses” has the meaning ascribed to it in Section 8(b).
“Fees” has the meaning ascribed to it in Section 8(a).
“Initial Term” means one (1) year, except as otherwise set forth in any Exhibit, Order Form or other Statement of Work.
“Intellectual Property Rights” means any rights with respect to intellectual property, including: patents, patent applications and other rights related to patents; copyrights, rights to register copyrights, copyright registrations and other rights related to copyrights; trademarks, service marks, rights to register trademarks and service marks, trademark and service mark registrations and other rights related to trademarks and service marks; know-how and trade secrets and other rights related to confidential or proprietary information; other intellectual property and industrial property rights, whether or not subject to statutory registration or protection; and all rights under any license or other agreement or arrangement with respect to the foregoing.
“Internal Business Purposes” means any use of the Licensed Software or Application Services to process Client’s data or to meet Client’s internal or operational needs.
“Law” means any applicable common law, statute, code, regulation, rule, ordinance or judicial decision.
“License” means the license granted to Client in Section 2(a).
“Licensed Software” means the Object Code for the Software, which may include, if applicable, the EasyFrame Saw Software, EasyFrame Production Software and Panel Bundling Software, if any, identified in any Exhibit, Order Form or other Statement of Work pursuant to which Client licenses such Software from Simpson Strong-Tie, and any Updates thereto; provided, however, that the Licensed Software shall not include any Source Code.
“Live Support Hours” means (except as otherwise expressly provided in any SOW) Monday through Friday, 8:00 a.m. to 3:00 p.m. PST, excluding holidays (New Year's Day, Presidents' Day, Memorial Day, 4th of July, Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Day).
“Minimum System Requirements” means any minimum requirements for Third Party Hardware and Software set forth in the Documentation or any SOW.
“Notice” has the meaning ascribed to it in Section 16(h).
“Notice of Noncompliance” has the meaning ascribed to it in Section 7.
“Notice of Objection” has the meaning ascribed to it in Section 16.
“Object Code” means any executable Software code produced by a compiler or assembler.
“Objection” has the meaning ascribed to it in Section 7.
“Order Form” means any document that shall have been executed by the Parties pursuant to which the Client contracts for Licensed Software or Services.
“Panel Bundling Software” means Simpson Strong-Tie’s Panel Bundling Software, which Client may license or subscribe to as Licensed Software pursuant to an Exhibit, Order Form or SOW.
“Party” means Simpson Strong-Tie or Client.
“Person” means a natural person, partnership, trust, estate, association, corporation, limited liability company or other entity or person, whether domestic or foreign.
“Personnel” means Simpson Strong-Tie’s employees or contractors who perform Services.
“Personally Identifiable Information” means any information that can be used to identify, contact or locate a natural person, including name, address, telephone number, email address, social security number, driver’s license number, and credit card information.
“Prohibited Information” means information that contains Personally Identifiable Information (except as otherwise expressly provided in any SOW) or information that is obscene, threatening, libelous, defamatory, harassing, malicious, offensive or otherwise in violation of any Law, including information that infringes or misappropriates any Intellectual Property Right.
“Recipient” means a Party that shall have received or been provided with access to Confidential Information disclosed or owned by the other Party.
“Renewal Term” has the meaning ascribed to it in Section 12(a), except as otherwise set forth in any Exhibit, Order Form or other Statement of Work.
“Representatives” means, with respect to a Party, such Party’s directors, officers, Affiliates, employees, agents, consultants and independent contractors; provided that, for purposes of this Agreement, neither Party shall be considered or deemed to be a Representative of the other Party or any of the other Party’s Affiliates.
“Services” means any Application Services, Ancillary Services, EasyFrame Maintenance Services, Software Support Services or other services provided by Simpson Strong-Tie pursuant to any SOW.
“Simpson Strong-Tie” means Simpson Strong-Tie Company Inc., doing business as EstiFrame Technologies.
“Simpson Strong-Tie Confidential Information” means Simpson Strong-Tie’s Confidential Information, including the Simpson Strong-Tie Technology, Simpson Strong-Tie Solutions, Work Product, Software, Documentation, trade secrets, formulas, data, designs, ideas, concepts, know-how, inventions, techniques, methodologies, marketing plans, strategies, forecasts and other confidential information about Simpson Strong-Tie’s business.
“Simpson Strong-Tie Marks” means trademarks, service marks, trade names and logos used by Simpson Strong-Tie to identify its products and/or services.
“Simpson Strong-Tie Solutions” means the Application Services and Licensed Software.
“Simpson Strong-Tie Technology” has the meaning ascribed to it in Section 10.
“Software” means any complete sequence of automatic data processing equipment instructions and all other computer software, programs or code of any kind, including Source Code, Object Code, application programs and software, mobile applications and apps, systems programs and software, modules, routines, graphical user interfaces, application programming interfaces, databases, libraries, subdivisions such as assemblers, compilers, routines, generators and utility programs, test programs, scripts, macros, and any other executable code or instructions, including any Updates related to any of the foregoing.
“Software Support Services” has the meaning ascribed to it in Section 6(c).
“Source Code” means any Software written by any Person, including a text listing of program instructions or commands.
“Statement of Work” or “SOW” means any document signed by both Parties that sets forth the Services to be performed by Simpson Strong-Tie, including any Exhibit or Order Form.
“Subscription Fees” mean all fees for any EasyFrame Subscription or any Licensed Software or Application Services specified in any Exhibit, Order Form or SOW.
“Subscription Term” means the fixed term set forth in the applicable Exhibit, Order Form or SOW during which Client will have access to any EasyFrame Subscription, provided that Client shall have paid all applicable Subscription Fees. The Subscription Term for EasyFrame Saw Software shall remain in effect for so long as Client owns the applicable EasyFrame Automated Marking System on which the EasyFrame Saw Software has been installed.
“Support Telephone Number” means the telephone number for support that shall have been designated by Simpson Strong-Tie through written Notice to Client.
“Taxes” has the meaning ascribed to it in Section 8(d).
“Term” means the Initial Term and any Renewal Term, unless earlier terminated pursuant to Section 12(b) or 12(c).
“Third Party” means any Person other than Simpson Strong-Tie and Client.
“Third Party Hardware and Software” means any computers, servers, network components, cabling, peripherals, hardware, devices, firewalls, parts, equipment, and any Software other than the Simpson Strong-Tie Solutions, including any operating systems, database products, antivirus software and application software.
“Third Party Rights” means any Third Party’s Intellectual Property Rights, property rights, privacy rights, rights of publicity or any other rights protected by Law.
“Update” means any update, new release, new version, module, enhancement, improvement, modification, addition, bug fix, patch, correction, or derivative work related to Software that Simpson Strong-Tie makes available to Client.
“Upload” means to communicate, process, send, store, upload, input, provide, post or transmit.
“User ID” means a unique user identification name and password for access to and use of the Simpson Strong-Tie Solutions.
“Work Product” means any Software, inventions, designs, creations, tools, processes, methods, technical developments, improvements, enhancements, ideas, concepts, discoveries, formulas, engines, tools, algorithms and any other work of authorship conceived, originated, made, developed, authored or reduced to practice by Simpson Strong-Tie, alone or with others, in connection with the Simpson Strong-Tie Solutions and Services provided pursuant to this Agreement; provided, however, that Work Product does not include any Client Information.
EXHIBIT B to EstiFrame Technologies Software License and Services Agreement
EASYFRAME MAINTENANCE SERVICES
EasyFrame Maintenance Services and Replacement Parts. If Client elects to purchase EasyFrame Maintenance Services and timely pays all applicable Fees, including the Annual Service Fee (as defined below), then, subject to the Exclusions (as defined below), Simpson Strong-Tie shall perform the following services during the Maintenance Term (as defined below):
Conduct one (1) visit at Client’s site of operations (travel covered by Simpson Strong-Tie) (“Site Visit”) during each year of the Maintenance Term, with such visit not to exceed a total of five (5) days. The Site Visit will take place at a mutually agreeable date and time. The Site Visit will be for preventive services and to perform any EasyFrame Maintenance Services identified in connection with such preventive services or services that are otherwise required under this Exhibit B; and
Repair or replace, at the election of Simpson Strong-Tie, any replacement parts set forth on https://www.easyframesaw.com/shop/recomended-replacement-parts (“Replacement Parts”) and reasonably determined by Simpson Strong-Tie to be defective or replaceable due to normal wear and tear.
For clarity, any additional services shall only be provided if agreed to in writing by both Simpson Strong-Tie and Client.
Notwithstanding the foregoing, EasyFrame Maintenance Services shall not include the following services, repairs or costs, each of which shall be borne solely by client (the “Exclusions”):
any costs associated with saw blades, printer ink or printer heads; and
maintenance or repairs resulting from any of the following: misuse, abuse, neglect, theft, riot, vandalism, electrical power failure, fire, water or other casualty or natural disasters, not using original equipment manufacturer (OEM) parts or toner, failure to follow the Documentation, or any repairs made or attempted by Client or third parties without the written consent of Simpson Strong-Tie.
EasyFrame Maintenance Services Term and Termination.
If Client elects to receive EasyFrame Maintenance Services and pays the Annual Service Fee, the Maintenance Term shall remain in effect for an initial term of one (1) year (“Initial Maintenance Term”), subject to Sections 2(b) and (c) below. Thereafter, the Maintenance Term shall automatically renew for additional terms of one (1) year (each, a “Maintenance Renewal Term”, and together with the Initial Maintenance Term, the “Maintenance Term”) unless either Party provides Notice to the other Party at least thirty (30) days’ prior to the expiration of the Initial Maintenance Term or the current Maintenance Renewal Term, as applicable, of its intention not to renew the Maintenance Term.
Termination With Cause. Simpson Strong-Tie may terminate this Exhibit B upon Notice to Client if Client breaches any material representation, warranty or obligation of the Agreement or this Exhibit B, which breach has not been substantially cured within thirty (30) days after such Notice has been provided. Simpson Strong-Tie may suspend access to the EasyFrame Maintenance Services until any breach by Client shall have been cured.
Termination for Nonpayment. If Client fails to pay when due any Annual Service Fee or other applicable Fees or Expenses and does not cure such breach within ten (10) days after Notice has been provided to Client, Simpson Strong-Tie may terminate this Exhibit B.
EasyFrame Maintenance Services Fees.
Annual Service Fee. Client shall pay the annual fee for the EasyFrame Maintenance Services (the “Annual Service Fee”) on or before the commencement of the Initial Maintenance Term and each Renewal Term, if applicable. The Annual Service Fee is subject to annual increases, with written notice to Client at least sixty (60) days prior to any such increase. The EasyFrame Maintenance Services will automatically renew at the end of the Initial Maintenance Term and each Renewal Term, if applicable, subject to the terms and conditions of the Agreement and this Exhibit B.
Additional Repairs. If Simpson Strong-Tie determines that any EasyFrame Product needs to be repaired beyond normal wear and tear or if such repairs are not otherwise included in the EasyFrame Maintenance Services, Simpson Strong-Tie will provide an estimate of the cost of repairs, in the form of an SOW to Client for both labor and parts (“Additional Repairs”). The Additional Repairs will be at Simpson Strong-Tie’s then-current labor rate, plus travel costs. The labor rate is subject to change without prior notice. Simpson Strong-Tie shall not be obligated to perform any repairs or order any parts until Client’s authorized representative executes the SOW.
Updated April 3, 2024