Definitions. All capitalized terms used herein, including those set forth in Exhibit A, have the meanings indicated, and cognate terms have corresponding meanings.
Application Services. Subject to the terms of this Agreement, Simpson Strong-Tie shall make the Application Services and related Documentation available via the Internet during the Term to Authorized Users who agree to the terms of the applicable Simpson Strong-Tie Website Application License Agreement. Customer 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.
Support Services. Simpson Strong-Tie shall make commercially reasonable efforts to perform Error Correction, and to provide other support related to the Application. Simpson Strong-Tie shall provide Support Services only if: (i) Customer shall have paid all Fees related to the Application; (ii) no modifications, additions or changes to the Application shall have been made by any Person other than Simpson Strong-Tie; (iii) Customer shall have provided any information, data or assistance reasonably requested by Simpson Strong-Tie; (iv) the Application shall have been used only on the Designated Systems; and (v) the Application shall have been used only in accordance with this Agreement and the Documentation. The Support Services do not include responding to any problem attributable to the Internet, public infrastructure or any environmental or other problems not directly related to the Application.
Designated Representative. Customer shall designate an employee (“Customer Contact”) 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. The Customer Contact will be the primary point of contact for this Agreement, and shall respond promptly when contacted by Simpson Strong-Tie regarding this Agreement. Customer shall promptly respond to any reasonable request for information or materials related to the Customer Website, this Agreement or Simpson’s performance of Services or obligations hereunder.
Third Party Hardware and Software. Customer shall be solely responsible for the purchase, installation, maintenance and use of all Third Party Hardware and Software. Simpson Strong-Tie shall not be required to provide any Services relating to: (i) Third Party Hardware and Software; (ii) any interoperability of the Application with any Third Party Hardware and Software; (iii) any failure to meet any Minimum System Requirements; or (iv) resolving Customer network, workstation, environmental or other problems not directly related to the Application.
Customer Marks. To the extent Simpson Strong-Tie modifies any Application to include any Customer Marks or otherwise uses any Customer Marks in connection with the Application Services, Customer hereby grants Simpson Strong-Tie a nonexclusive, worldwide, royalty-free, fully-paid-up right and license to use the Supplier Marks, during the Term, in connection with the Application and the Application Services.
Fees and Payments.
Payment Terms. All invoices shall be due and payable in full no later than fifteen (15) days after the date of invoice. 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 Application and Services if any Fees payable hereunder are past due and Customer fails to cure such non-payment within ten (10) days of receipt of Notice from Simpson Strong-Tie. Such a suspension of Application and Services shall not relieve Customer 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 (collectively “Taxes”), all of which shall be paid by Customer; 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, Customer shall reimburse Simpson Strong-Tie.
Ownership. 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 to the Application, any data or content generated by the Application or collected through use of the Application and all other 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, Customer hereby assigns to Simpson Strong-Tie, or its designee, all right, title and interest in and to the Simpson Strong-Tie Technology. Customer shall not take any action to jeopardize, limit or interfere in any manner with Simpson Strong-Tie’s ownership of and rights with respect to the Simpson Strong-Tie Technology. All trademarks contained in the Application (including any Report) and all data and information created in connection with the use of the Application or the Application Services are the property of the Simpson Strong-Tie or its licensors and may not be used for any purpose without the prior written permission of their respective owners.
Restrictions. Customer may not: (i) modify, translate, reverse engineer (except to the extent permitted under applicable law), decompile, disassemble, or create any derivative works based on the Application or the Application Services, or any part thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Application or any part thereof; (ii) redistribute, market, rent or lease the Application or the Application Services for a fee or charge; (iii) represent that the Application or the Application Services, or any part thereof, is owned by any party other than the Simpson Strong-Tie; (iv) remove or alter any proprietary notices, labels, marks or identifying information of any kind on the Application or the Application Services, or any part thereof; (v) incorporate the Application or the Application Services, or any part thereof, into any other application or product; (vi) use the Application or the Application Services or any part thereof (including, without limitation, Simpson Strong-Tie product names, nomenclature, model numbers or any other trademarks) to refer to or facilitate selection of any products other than Simpson Strong-Tie products; or (vii) use the Application or the Application Services for any purpose other than in accordance with the terms and conditions of this Agreement.
Authorized User Responsibilities. Customer acknowledges and agrees as follows: The output from the Application, including any Report, is a product selection guide and is not a finished building plan. The Application is not designed to perform any of the engineering calculations or structural design required for building construction. Due to the size, shape, location or other considerations, the design set forth in the Report may require supporting structures (such as knee braces and bridging between joists and posts) that are not included in the Report. The Application and Report are intended to be used only in conjunction with Simpson Strong-Tie® products. Before beginning any project, Authorized Users must review all of the information about the Simpson Strong-Tie® products that is available on www.strongtie.com. Any use of the Application or the Report is at the Authorized Users’ sole risk. Authorized Users must secure professional technical and/or engineering expertise to review and confirm the appropriateness and accuracy of all information in the Report, including, without limitation, all input and output from the Application. Authorized Users must consult with a trained professional to ensure that the products are properly specified for the particular environment (including, without limitation, that the products have the proper level of corrosion resistance based on the particular environmental conditions, materials, construction design and other factors) and to ensure that the products are used in accordance with the design limits and the structural, technical and environmental specifications set forth on www.strongtie.com. The Application is not a substitute for professional judgment or for independent design and testing for stress, safety and utility. Authorized Users are responsible for ensuring that all measurements are correct and for verifying the Report’s accuracy, completeness and suitability for the particular site conditions. Before beginning any project, Authorized Users must confirm that the design set forth in the Report is safe and structurally sound for its size, location and anticipated use. If Authorized Users have any doubts, concerns or questions, they should consult local experts, builders, architects and structural and soil engineers. Authorized Users should also consult with local authorities to ensure that the project complies with all applicable zoning and building codes, requirements and practices, which vary greatly depending on location. Authorized Users are responsible for ensuring that the project (including the design set forth in the Report and any substitutions or modifications made thereto) complies with all applicable zoning and building codes, requirements and practices (including requirements for lighting). Simpson Strong-Tie cannot anticipate Authorized Users’ working conditions or the characteristics of Authorized Users’ materials and tools. Authorized Users should seek professional assistance with respect to the construction of the structure and should use caution, care and good judgment when following the instructions.
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 9(b) and 9(c) below. Upon expiration of the Initial Term and on each anniversary of the Effective Date thereafter, 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 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. Simpson Strong-Tie may suspend access to the Application or Services until any breach by Customer shall have been cured.
Termination for Nonpayment. If Customer fails to pay when due any Fees and does not cure such breach within ten (10) days after Notice has been provided to Customer, 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) Customer and all Authorized Users shall immediately cease using the Application; and (iv) Customer shall promptly pay to Simpson Strong-Tie any undisputed amounts owed under this Agreement, including any unpaid Fees.
Survival. Sections 1, 4, 5, 6, 7, 8, 9(d), 10, 11 and 12 shall continue in full force and effect notwithstanding, and shall survive, any termination or expiration of this Agreement.
Disclaimer of Warranties.
SIMPSON STRONG-TIE MAKES NO WARRANTY WITH RESPECT TO THE APPLICATION OR THE SERVICES. THE APPLICATION AND THE SERVICES ARE MADE AVAILABLE “AS IS” AND WITH ALL FAULTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SIMPSON STRONG-TIE OR ANY OF ITS REPRESENTATIVES SHALL IN ANY WAY MODIFY THIS DISCLAIMER OF WARRANTY. SIMPSON STRONG-TIE DOES NOT WARRANT THAT THE USE OF THE APPLICATION WILL BE UNINTERRUPTED, THAT THE APPLICATION WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE APPLICATION, THE APPLICATION SERVICES OR THE REPORT WILL BE FREE FROM ERRORS, THAT ERRORS WILL BE CORRECTED, OR THAT THE APPLICATION OR THE APPLICATION SERVICES WILL MEET AUTHORIZED USERS’ REQUIREMENTS.
SIMPSON STRONG-TIE DOES NOT HAVE CONTROL OVER THE USE OF THE APPLICATION, AND SIMPSON STRONG-TIE DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH THE USE OF THE APPLICATION. AUTHORIZED USERS ASSUME ALL RISKS AND RESPONSIBILITY FOR THE USE OF THE APPLICATION AND THE APPLICATION SERVICES, INCLUDING THE REPORT AND ALL INFORMATION CONTAINED THEREIN.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SIMPSON STRONG-TIE MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR ALLEGEDLY EXTENDED IN ANY COMMUNICATION. SIMPSON STRONG-TIE SPECIFICALLY DISCLAIMS ANY AND ALL: (1) IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT; (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR OPERATION OF THE APPLICATION WILL BE ERROR FREE OR UNINTERRUPTED.
Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT WILL SIMPSON STRONG-TIE, ITS AFFILIATES OR ANY OF THEIR REPRESENTATIVES BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF BUSINESS, LOST PROFITS, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, COST OF COVER OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHERWISE). THIS LIMITATION WILL APPLY EVEN IF SIMPSON STRONG-TIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES AVAILABLE TO EITHER PARTY. IN NO EVENT SHALL SIMPSON STRONG-TIE’S OR ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO SIMPSON STRONG-TIE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN NOTICE OF SUCH CLAIM WAS PROVIDED HEREUNDER.
Assignment. Customer may not assign its rights or delegate its duties hereunder without Simpson Strong-Tie’s prior written consent, which may be withheld in Simpson Strong-Tie’s absolute discretion. 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 Application or Services.
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; Venue. 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. Exclusive jurisdiction and venue of any actions connected with this Agreement shall be in the state or federal courts residing in the Northern District of California and/or San Francisco, California. 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 each of them has participated in the drafting of the Agreement and 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 Customer Agreement, 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 Customer Agreement. 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 Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no Third Party beneficiaries to this Agreement.
Export. Customer acknowledges that the Application may be subject to United States export controls. Customer agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export of the Application, or any technical information about the Application, without fully complying with this Agreement, the United States Export Administration Act, any regulation thereunder, and all other applicable Laws.
Use of Aggregated Data. Customer hereby grants to Simpson Strong-Tie a non-exclusive, perpetual, irrevocable, unlimited, worldwide, royalty-free right and license to disclose and use any Aggregated Data generated through use of the Application or as a result of this Agreement.
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 Customer Contacts for the Parties, then the Parties shall escalate the dispute for resolution by authorized executive officers of Simpson Strong-Tie and Customer. 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 12(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 Sections 5 or 6 of this Agreement by Customer, or Section 8 of this Agreement by either Party, could cause irreparable harm to the other Party which would not be adequately compensated by monetary damages, and that in addition to other relief, the non-breaching Party 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.
Entire Agreement; Waiver. This Agreement (including the Customer Agreement, these Standard Terms and Conditions, and any Exhibits and Appendices) 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 same subject matter. 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 Customer 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 Customer Agreement and any Appendix attached thereto, then to these Standard Terms and Conditions and any Exhibits attached hereto.
Counterparts. This Agreement may be executed in any number of counterparts, including facsimile or scanned PDF documents, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
“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 or permits the tracing of individual data elements to any individual.
“Agreement” means the Customer Agreement, Standard Terms and Conditions and any Appendices and Exhibits thereto.
“Application” means the Software made available to Authorized Users as part of the Application Services.
“Application Services” means Simpson Strong-Tie’s provision of Software as a Service pursuant to the terms of this Agreement.
“Authorized Users” means any end users who have agreed to the terms of the applicable Simpson Strong-Tie Website Application License Agreement.
“Confidential Information” means 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, making a modification or addition to the Application that, when made or added to the Application, renders the Application in substantial conformity with the applicable Documentation.
“Customer Agreement” means a written agreement by and between Customer and Simpson Strong-Tie, which agreement incorporates the Standard Terms and Conditions by reference as if fully set forth therein.
“Customer Contact” has the meaning ascribed to it in Section 3(b).
“Customer Marks” means trademarks, service marks, trade names and logos used by Customer to identify its products and/or services.
“Disclosing Party” means a Party that makes Confidential Information available to the other Party.
“Documentation” means any user manuals and documentation relating to the use of the Application, and any instructions or on-line help files supplied by Simpson Strong-Tie to Customer.
“Error” means any reproducible and verifiable failure of the Application to operate in all material respects in accordance with the Documentation.
“Exhibit” means any of the Exhibits attached to this Agreement.
“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.
“Minimum System Requirements” means any minimum requirements for Third Party Hardware and Software set forth in the Documentation or this Agreement.
“Notice” has the meaning ascribed to it in Section 12(h).
“Object Code” means any executable Software code produced by a compiler or assembler.
“Party” means Simpson Strong-Tie or Customer.
“Person” means a natural person, partnership, trust, estate, association, corporation, limited liability company or other entity or person, whether domestic or foreign.
“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 9(a).
“Report” means any output from the Application and any information provided as part of the Application Services, including any designs, specifications, product selection and reports.
“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, Support Services or other services provided by Simpson Strong-Tie pursuant to this Agreement.
“Simpson Strong-Tie Confidential Information” means Simpson Strong-Tie’s Confidential Information, including the Simpson Strong-Tie Technology, Application, Services, 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 Technology” means the Application, the Application Services and all reports, output, data or information created in connection with the Application Services or the use of the Application, and any revisions, modifications, enhancements and derivative works thereof, and all Intellectual Property Rights related thereto, all of which shall constitute Simpson Strong-Tie Confidential Information.
“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.
“Source Code” means any Software written by any Person, including a text listing of program instructions or commands.
“Standard Terms and Conditions” means the Outdoor Living Solutions Linking Standard Terms and Conditions to which this Exhibit is attached.
“Support Services” means the Services set forth on any Exhibit, Customer Agreement or other Appendix that requires Simpson Strong-Tie to perform Services related to support or maintenance of the Application.
“Support Telephone Number” means the telephone number for support that shall have been designated by Simpson Strong-Tie through written Notice to Customer.
“Taxes” has the meaning ascribed to it in Section 4(b).
“Term” means the Initial Term and any Renewal Term, unless earlier terminated pursuant to Section 9(b) or 9(c).
“Third Party” means any Person other than Simpson Strong-Tie and Customer.
“Third Party Hardware and Software” means any computers, servers, network components, cabling, peripherals, hardware, devices, parts, equipment, and any Software other than the Application, including any operating systems, database products and application software.
“Work Product” means any Software, Services, 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 Application and Services provided pursuant to this Agreement.