Terms and Conditions

Updated as of: November 19, 2024

IMPORTANT – READ CAREFULLY: When accepted by you (“You”, “Your”), these Terms and Conditions constitute a binding agreement between You and Eagle Point Software Corporation (“Eagle Point”) governing the use of the Eagle Point Services (the “Services”). The Services consist of access to and use of one or more of the following: (1) the then-current version of the proprietary “Pinnacle Series Software” and its associated API, (2) the then-current version of the proprietary “KnowledgeSmart Skills Assessment Software” and its associated API, (3) the then-current version of the proprietary “KnowledgeSmart Skills Audit Software” and its associated API, and (4) Content Libraries (defined below), all as more particularly described in Your Order Form.

BY SELECTING THE “ACCEPT” OPTION BELOW, OR BY INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO THESE TERMS AND CONDITIONS.

IF YOU ARE DOING SO IN YOUR INDIVIDUAL CAPACITY, THEN YOU ARE THE LICENSEE. IF YOU ARE DOING SO ON BEHALF OF A LEGAL ENTITY, AND NOT AS AN INDIVIDUAL, THEN YOU ARE REPRESENTING THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “LICENSEE”, “YOU”, AND “YOUR” SHALL REFER TO THAT ENTITY AND ITS AFFILIATES. IF YOU ARE DOING SO AS AN EMPLOYEE, AN AGENT, A CONSULTANT, OR A CONTRACTOR OF A LEGAL ENTITY THAT HAS PREVIOUSLY ACCEPTED THESE TERMS AND CONDITIONS, THEN YOU ARE REPRESENTING THAT YOU HAVE BEEN AUTHORIZED TO ACCESS AND USE THE SERVICES AS A “PERMITTED USER” HEREUNDER.

IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN DO NOT ACCEPT THEM, AND YOU WILL NOT BE PERMITTED TO ACCESS OR USE THE SERVICES.

I. Definitions

• “Affiliate” means, with respect to a subject entity, any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
• “Application” means a software application program or suite of programs (1) with which Eagle Point has integrated the Eagle Point Software, either on its own initiative or at Your request pursuant to a separate agreement and (2) for which You have a valid use license. As used herein, “Application” does not mean or include “Your Application”, defined below.
• “Business Partner” means an entity authorized by Eagle Point that recommends, refers and/or sells Licenses and related services for the Services.
• A “Content Library” means the pre-loaded readable information and materials and any additional information and materials made available via the Services and selected by You as part of Your License to the Services, that is accessible by You (and, if You are an entity Licensee, Your Permitted Users), including any enhancements, improvement or new versions thereof. “Content Libraries” do not include “Your Content”, defined below.
• “Documentation” means Eagle Point’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via the Services.
• “Eagle Point Software” means the Eagle Point proprietary computer software platform and modules comprising the Pinnacle Series Software, the KnowledgeSmart Skills Assessment Software, and/or the KnowledgeSmart Skills Audit Software, as set forth in Your Order Form, that is (are) used or made available by Eagle Point to provide the Services and Documentation, including any enhancements, improvements or new versions thereof.
• “License” means the subscription license granted to You under Section 2 below.
• “Order Form” means an ordering document prepared by Eagle Point that specifies the Services to be provided hereunder and the invoicing and payment terms therefor and that is entered into between You and Eagle Point. An Order Form does not include proposals, business plans, or the like, nor is an Order Form Your form of purchase order, the terms of which are hereby expressly rejected. Where You have purchased a License to the Services through a Business Partner, “Your Order Form” means the order placed by that Business Partner with Eagle Point pursuant to its automated processes.
• “Permitted Users” means, if You are an entity Licensee, those of Your employees, agents, consultants and contractors authorized by You to use the Services and who have accepted these Terms and Conditions.
• “Subscription Fees” means the periodic amounts to be paid by You for the License during the Term as shown on Your invoice(s), exclusive of applicable taxes, duties, and other charges, which are invoiced separately and also payable by You.
• “Term” means the Initial Term and all Renewal Terms. “Initial Term” and “Renewal Term” each have the meaning ascribed to it in Section 8 below.
• “Your Application” means a software application program that You develop, or a software program for which you have a valid use license that You integrate with the Eagle Point Software, in each case using the associated APIs provided with the Services, for Your internal use only, not for redistribution, and not for use by anyone other than Permitted Users.
• “Your Content” means any information and materials that are developed by or for and used by You in conjunction with the Services, including without limitation any additions, modifications, and changes to and Content Libraries made by or for You.

II. Grant of License

In exchange for payment of the applicable periodic Subscription Fees and other charges set forth on Your invoice(s) from Eagle Point or a Business Partner, Eagle Point hereby grants You a nonexclusive, nontransferable, limited, subscription license (the “License”) to use and access the Services with equipment owned by You or under Your control and according to these Terms and Conditions, for Your internal business needs only (or, if You are a Permitted User, the business needs of the Licensee). Under this License You may download the Eagle Point Software and Content Libraries for which You have subscribed onto multiple computers for use offline and for use with any Application; You may access the Services by signing in using your assigned credentials; You may use the associated APIs provided with the Eagle Point Software to develop Your Application(s) and/or to integrate Your Application(s) with the Eagle Point Software; and You may add to, modify, or change Content Libraries for Your internal business needs only (or those of the Licensee if You are a Permitted User). If You are a duly licensed user of an Application, You may use the Services and the Content Libraries in connection with your use of that Application. If You are an entity Licensee, then You are responsible for the acts and omissions of all Permitted Users.

III. Ownership

You acknowledge that:

• All right, title and interest in and to all of the Eagle Point Software, the associated APIs, the Content Libraries, and the Services and all patents, copyrights, trade secret rights, trademarks, trade names and other intellectual property, proprietary, and moral rights embodied therein or associated therewith, are and shall remain with Eagle Point and/or its licensors, irrespective of whether any of them are accessed by You directly or by means of an Application and irrespective of whether they have been downloaded by You for use offline or with any Application;
• The Services, the Eagle Point Software, the associated APIs, and the Content Libraries are protected by the copyright laws of the United States and treaties to which the United States is a party, as well as other intellectual property laws and treaties;
• The Services, the Eagle Point Software, and the associated APIs each embody valuable confidential and secret information of Eagle Point, the development of which required the expenditure of considerable time and money; and
• Your use of the Services, the Eagle Point Software, the associated APIs, and the Content Libraries, whether or not integrated with an Application or Your Application, are governed solely by these Terms and Conditions, and no rights or licenses to the Services, the Eagle Point Software, the associated APIs, or the Content Libraries are granted except as expressly set forth in Section 2 above.

IV. Your Obligations

You:

• Shall not disclose or provide any portion of the Services, the Eagle Point Software, the Content Libraries, or the associated APIs to any person, natural or corporate, or use the Services, the Eagle Point Software, the Content Libraries, or the associated APIs, other than as expressly permitted by these Terms and Conditions;
• Shall not alter, reverse engineer, disassemble or decompile any part of the Services, the Eagle Point Software or the associated APIs;
• Shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Services, the Eagle Point Software, the Content Libraries, or the associated APIs;
• Shall not remove any copyright and other proprietary notices contained in the Services, the Eagle Point Software, the Content Libraries, or the associated APIs;
• Shall not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by Eagle Point in connection with the Services, the Eagle Point Software, the Content Libraries, or the associated APIs, or use the Services, the Eagle Point Software, the Content Libraries, or the associated APIs together with any authorization code, serial number, or other copy protection device not supplied by Eagle Point, either directly or through a Business Partner;
• Shall maintain all usernames, passwords, and copies of the Eagle Point Software and Content Libraries in a manner so as to reasonably preclude unauthorized use thereof or access thereto;
• Shall at all times comply with the Eagle Point Acceptable Use Policy found at eaglepoint.com/aup; and
• Shall not use any third party component contained in or provided with the Services, the Eagle Point Software, the Content Libraries, or the associated APIs separately from Your use of the Services.

You represent and warrant that You are duly licensed to use any and all Applications with which You use the Services.

You alone are responsible for the security of Your username and password. You may not share Your username or password associated with the Services with any other individual or party, including without limitation Your Permitted Users. You may not rent, lease, or lend the Services, the Eagle Point Software, the Content Libraries, or the associated APIs. You may not distribute copies of the Eagle Point Software, the associated APIs, or the Content Libraries to third parties.

You acknowledge and agree that:

• The Services require access to and use of the Internet and that the Internet is an unregulated public network over which Eagle Point exerts no control;
• Eagle Point has no responsibility for operating and maintaining Your servers and their connection to the Internet to access and use the Services; and
• You are solely responsible for ordering and commissioning any required hardware, software, and other equipment necessary to meet the minimum specifications published by Eagle Point in order to use and/or access the Services.
• You shall not export or re-export any portion of the Services, the Eagle Point Software, or the associated APIs in violation of any export provisions of the United States or any other applicable jurisdiction.

You shall pay all Subscription Fees and other amounts and charges shown on Your invoice(s) as and when due without holdback or setoff of any kind.

Licensees that are legal entities hereby agree that Eagle Point is permitted hereunder to disclose the existence, but not the terms, of its relationship with them on the Eagle Point website(s) and in press releases and to use their names and logos in connection therewith, without compensation.

V. Restricted Rights for Government Licensees

If You are an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, or a representative thereof, or if any of the Services, the Eagle Point Software, or the associated APIs is used by or on behalf of an agency, department, or other entity of the United States Government, then You agree that the Services, the Eagle Point Software, or the associated APIs constitute “commercial computer software” or “commercial computer software documentation” and that Your rights with respect to the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services are limited by the terms of these Terms and Conditions, pursuant to FAR § 12.212 and/or DFARS § 227.7202, as applicable. If You are an agency, department, or other entity of the United States Government or any state, provincial, or local government, then for purposes of any public disclosure provision under any applicable law, it is agreed that the Services constitute a trade secret and a proprietary commercial product and are not subject to disclosure.

VI. Canadian Licensees

If You purchased a License  for use in Canada, You agree to the following: the parties hereto confirm that it is their wish that these Terms and Conditions, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties aux présentes confirment leur souhait que le présent accord, ainsi que les autres documents y afférents, y compris les avis, aient été et soient rédigés en anglais uniquement.

VII. Your Content; Your Application(s).

You may upload and publish Your Content to the Services, subject to the following limitations:

• Limited License to Your Content. If You enter Your Content into the Services, or if a Business Partner or a Permitted User enters Your Content into the Services on Your behalf, Eagle Point requires a license to Your Content so that it can provide the Services to You utilizing Your Content. Therefore, by entering Your Content into the Services or making changes to existing Content Libraries in the Services, by whatever means, You hereby grant to Eagle Point and its licensors a world-wide, irrevocable, fully-paid, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, and distribute Your Content to enable Eagle Point to provide the Services to You and Your Permitted Users during the Term. Any other use of Your Content shall require Your express written consent.
• Your Content Warranty. By accepting these Terms and Conditions and transmitting and uploading Your Content, You represent and warrant on a continuing basis that:
  • You have the full and unrestricted authority and right to transmit Your Content to Eagle Point and upload it to the Services;
  • Your Content is original with You and contains no libelous or obscene materials, and otherwise complies with the Eagle Point Acceptable Use Policy referred to above; and
  • The use of Your Content will not infringe the intellectual property rights or other proprietary, moral, publicity, or privacy rights of any third party.
• Use of Your Content is at Your Risk. Eagle Point and its licensors and Business Partners shall have no responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of Your Content, and shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Your Content. You acknowledge that Your use of Your Content generated, obtained, or acquired through the use of the Services is at Your sole risk. Eagle Point and its licensors are not liable or responsible for any results generated using Your Content.

You may develop or integrate Your Application(s) using the APIs associated with the Eagle Point Software, subject to the following limitations:

• Limited License to Your Application. Eagle Point requires a license to Your Application so that it can provide the Services to You in connection with the functionality of Your Application. You hereby grant to Eagle Point and its licensors a worldwide, irrevocable, fully-paid, royalty-free, and non-exclusive license to access and use Your Application to enable Eagle Point to provide the Services to You and Your Permitted Users during the Term. Any other use of Your Application shall require Your express written consent.
• Your Application Warranty. By accepting these Terms and Conditions, You represent and warrant on a continuing basis that:
  • You have sole and exclusive right, title and interest in and to Your Application as developed; or
  • You have the full and unrestricted right and authority to integrate Your Application with the Eagle Point Software, if Your Application is not developed by You; and
  • In either case, the use of Your Application will not infringe the intellectual property rights or other proprietary, moral, publicity, or privacy rights of any third party.
• Use of Your Application is at Your Risk. Eagle Point and its licensors and Business Partners shall have no responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of Your Application and shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any information, data, or Content caused in whole or in part by Your Application. You acknowledge that Your use of Your Application and any results, data, or information generated, obtained, or acquired through the use of Your Application, alone or with the Services, is at Your sole risk. Eagle Point and its licensors are not liable or responsible for any results generated using Your Application, alone or with the Services.

VIII. Term and Termination

Unless earlier terminated pursuant to Section 8(b) below, the Term of the License granted under these Terms and Conditions shall commence on the date of the invoice for Your purchase of the License and remain in effect for the number of years for which You have subscribed as stated in the invoice (“Initial Term”). After the Initial Term, the License will automatically terminate unless You renew for a successive agreed upon period (subject to Your payment of the applicable Subscription Fees therefor) (“Renewal Term(s)”), unless terminated earlier by either party pursuant to Section 8(b) below.

Either party may terminate the License:

• Upon sixty (60) days written notice prior to the expiration of the Initial Term or the then-current Renewal Term; or
• If the other party commits a material breach of these Terms and Conditions which is not cured within thirty (30) days after written notice thereof is given by the non-breaching party (five (5) days for payment breaches).

Upon any expiration or termination of the License:

• You shall immediately cease using or otherwise accessing the Services, the Eagle Point Software, the associated APIs, and the Content Libraries;
• You will destroy or return to Eagle Point (at Eagle Point’s option) all copies of the Eagle Point Software, the associated APIs, and any Content Libraries downloaded by You and certify to the same; and
• Eagle Point will immediately deactivate Your and Your Permitted Users’ account(s) and any access thereto.

For a period of thirty (30) days after termination or expiration, Eagle Point will permit You to access the Services solely to retrieve and delete Your Content; after this thirty (30) day period Eagle Point may delete Your Content.

The parties’ rights and obligations under Sections 3, 11, 14, 15, and 16, as well as Your payment obligations that have accrued prior to expiration or termination, shall survive any expiration or termination of the License.

IX. Limited Performance Warranty

Eagle Point warrants that during the Term (the “Warranty Period”) the Services, under normal operation as set forth in the Documentation and when used as authorized herein, will perform substantially in accordance with the Documentation (the “Limited Warranty”). This Limited Warranty excludes any failure of performance caused in whole or in part by Your Application, by an Application, or by Your failure to maintain Your status as a duly licensed user of that Application.

Eagle Point’s entire liability and Your exclusive remedy under the Limited Warranty during the Warranty Period will be, at Eagle Point’s sole and exclusive option:

• To attempt to cause the Services to so perform; or
• To refund the portion of Subscription Fees, if any, paid by You for any remaining period in the applicable Initial or Renewal Term and terminate the License.

You are solely responsible for any and all expenses associated with any claims under the Limited Warranty.

The foregoing notwithstanding, You may be entitled to statutory rights and remedies in addition to this Limited Warranty.

Claims under this Limited Warranty may be submitted to Eagle Point.

X. Eagle Point Service Level Agreement Terms

Definitions.

• “Downtime” means the minutes in a month in which You or Your Permitted Users
  • Suffer a loss of access to the Services, or
  • Experience a sustained and material degradation to the performance of the Services that impacts Your business, other than Excused Downtime.
  • Downtime begins at the time Eagle Point is notified by You of the lack of Availability and ends when Eagle Point is notified by You or otherwise confirms that Availability has been restored.
• “Services Maintenance Period” means the time from 8:00 AM CT until 5:00 PM CT on the 2^nd Tuesday of each month (or such other periods as Eagle Point may notify You from time to time), during which time access to the Services is not available due to maintenance, upgrades, and other operating requirements (collectively, “Services Maintenance”
  • Services Maintenance will occur monthly. Eagle Point shall use commercially reasonable efforts to complete all Services Maintenance during any Services Maintenance Period, but You acknowledge that it may not always be possible for Eagle Point to do so. Should Services Maintenance exceed the Services Maintenance Period (per incidence of Services Maintenance), that excess will not be considered as Excused Downtime.
  • Eagle Point will use commercially reasonable efforts to give You seven (7) days notice of Services Maintenance and twenty-four (24) hours notice of suspension of the Services in the case of errors that have been detected and which are likely to cause imminent failure of the Services to perform.
• “Excused Downtime” means the Service Maintenance Period and any Downtime that is caused by
  • The Internet or other telecommunications errors outside of Eagle Point’s control,
  • Failures attributed to Your or Your Permitted Users’ hardware, software, or equipment, including without limitation Your Application(s), or to Applications, or
  • Circumstances outside of Eagle Point’s reasonable control.
• “Monthly Availability” means the continuous and uninterrupted availability of the Services during any calendar month, measured in minutes, less any Excused Downtime in the same month, measured as a percentage of the total minutes in that calendar month.

Service Level Targets.

Eagle Point shall use commercially reasonable efforts to provide You and Your Permitted Users with Monthly Availability of 99.95%.

If Eagle Point fails to provide Monthly Availability of 99.95% in a given calendar month, then as Your sole remedy You shall receive a Service Level Credit for the following Renewal Term’s Subscription Fees equal to one-twelfth of the applicable annual Subscription Fee multiplied by the Applicable Credit Percentage as listed in the following table.

Monthly Availability	Applicable Credit Percentage
97.0% to 99.95%	2%
95.0% to 96.99%	5%
90.0% to 94.99%	10%
85.0% to 89.99%	20%
Below 85.00%	30%

XI. Disclaimers; Limitation of Liability.

THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, AND THE CONTENT LIBRARIES ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. THEY ARE NOT SUBSTITUTES FOR YOUR PROFESSIONAL JUDGMENT. THEY ARE INTENDED TO ASSIST WITH THE USE OF OTHER TECHNOLOGY AND ARE NOT SUBSTITUTES FOR INDEPENDENT TESTING OF PRODUCT STRESS, SAFETY AND UTILITY. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, AND THE CONTENT LIBRARIES, THEY HAVE NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH THEY MAY BE USED. EAGLE POINT SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, OR THE CONTENT LIBRARIES. YOU AND YOUR PERMITTED USERS USING THEM ARE RESPONSIBLE FOR THEIR SUPERVISION, MANAGEMENT AND CONTROL. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, AND THE CONTENT LIBRARIES, AND THEIR SELECTION TO ACHIEVE YOUR INTENDED RESULTS. YOU AND YOUR PERMITTED USERS USING THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, AND THE CONTENT LIBRARIES ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY PROGRAM OUTPUT, INCLUDING ALL ITEMS DESIGNED BY USING ANY OF THEM.

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9, THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, AND THE CONTENT LIBRARIES ARE PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, EAGLE POINT AND ITS LICENSORS AND BUSINESS PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, IN CONNECTION WITH THEM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITH THE EXCEPTION OF ANY STATUTORY WARRANTY OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, IN NO EVENT WILL EAGLE POINT OR ITS LICENSORS AND BUSINESS PARTNERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE SERVICES, THE EAGLE POINT SOFTWARE, THE ASSOCIATED APIS, OR THE CONTENT LIBRARIES, REGARDLESS OF WHETHER THEY HAVE BEEN INFORMED OF SUCH DAMAGES. IN ADDITION, WITH THE EXCEPTION OF ANY STATUTORY WARRANTY OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, EAGLE POINT AND ITS LICENSORS AND BUSINESS PARTNERS SHALL NOT BE LIABLE UNDER ANY THEORY FOR LOST, CORRUPTED OR INACCURATE DATA, CONTENT LIBRARIES, YOUR APPLICATION, ANY APPLICATION, OR YOUR CONTENT OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES, OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EAGLE POINT OR ITS LICENSORS OR BUSINESS PARTNERS EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY YOU TO EAGLE POINT DURING THE PRECEDING TWELVE (12) MONTHS PRIOR TO THE INCIDENT GIVING RISE TO THE CLAIM (OR THE FIRST INCIDENT, IF MORE THAN ONE INCIDENT IS THE BASIS FOR SUCH CLAIM).

Australian Licensees Only. To the extent that the Australian Consumer Law applies to the Services, the Eagle Point Software, the associated APIs, and the Content Libraries, each comes with certain guarantees that cannot be excluded under the Australian Consumer Law. If You are a ‘consumer’ under the Australian Consumer Law, then You hereby disclose and agree that the purpose for which You intend to access and use the Services, the Eagle Point Software, the associated APIs, and the Content Libraries, is that described in the Documentation; that You have determined to accept these Terms and Conditions and access and use the Services, the Eagle Point Software, the associated APIs, and the Content Libraries after examining the availability of equivalent goods and services; that the terms of these Terms and Conditions are fair and reasonable in light of customary terms and conditions applicable to goods and services comparable to the foregoing; and that You have not requested that the Services, the Eagle Point Software, the associated APIs, or the Content Libraries be developed or adapted to Your requirements. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Services, the Eagle Point Software, the associated APIs, and the Content Libraries repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.

Your Content, Your Application, and Applications. EAGLE POINT AND ITS LICENSORS AND BUSINESS PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, AS TO YOUR CONTENT, YOUR APPLICATION, AND ANY AND ALL APPLICATIONS. ALL RISK OF USE OF YOUR CONTENT, YOUR APPLICATION, AND ANY APPLICATIONS IS AND REMAINS WITH YOU.

XII. indemnification

Eagle Point shall defend, indemnify and hold You harmless from and against any claim, lawsuit or allegation of a third party that the Services (exclusive of Your Content, Your Application(s), and Applications) infringe on or misappropriate the patent, copyright or trademark rights of that third party (a “Claim”)

If the Services or any portion thereof becomes, or in Eagle Point’s opinion is likely to become, the subject of a Claim, Eagle Point will, at its sole option and discretion:

• Procure for You the right to continue using the Services;
• Replace the Services or portion thereof with non-infringing services substantially complying with the Documentation;
• Modify the Services or portion thereof so they (it) become(s) non-infringing and perform(s) in a substantially similar manner to the original; or
• Direct You and Your Permitted Users to cease any use of the Services and refund that portion of the Initial or Renewal Term’s Subscription Fees paid to Eagle Point and then unused for the infringing Services on a pro rata

The obligations set forth in Sections 12(a) and (b) do not apply if the Claim is caused by, is based on, or results from:

• Any third-party software or hardware products or equipment, or software or hardware products or equipment not developed by Eagle Point, whether or not provided hereunder, including without limitation Applications;
• Your or Your Permitted Users’ combination or use of the Services, the Eagle Point Software, the associated APIs, or the Content Libraries or portion thereof with Your Application, Your Content, Applications, or with software, services, or hardware products or equipment developed or provided by You, Your Permitted Users, and/or a third-party and not authorized by Eagle Point;
• Modification of the Services, the Eagle Point Software, the associated APIs, or the Content Libraries, or portions thereof by anyone other than Eagle Point;
• Your Content or Your Application(s);
• Your or Your Permitted Users’ continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement;
• Your or Your Permitted Users’ use of the Services, the Eagle Point Software, the associated APIs, and the Content Libraries, or portion thereof in a manner not in accordance with these Terms and Conditions;
• Your or Your Permitted Users’ use of any Application or portion thereof in a manner not in accordance with the terms of Your license; or
• Your or Your Permitted Users’ use of other than Eagle Point’s most current release of the Services, the Eagle Point Software, the associated APIs, or the Content Libraries or portion thereof if the Claim would have been avoided by use of the most current release
• (any such Claim, an “Excluded Claim”).

Eagle Point will have no liability to You, and You will defend, indemnify and hold Eagle Point harmless against, any and all claims based on:

• Your Content, including without limitation Your additions to and modifications of Content Libraries;
• Your Application(s);
• Any of Your other information or data, or that of Your Permitted Users, used in connection with the Services;
• Your use of the Services, the Eagle Point Software, the associated APIs, and the Content Libraries;
• Excluded Claims; or
• Compliance by Eagle Point with Your designs or instructions.

With respect to the parties’ indemnification obligations under this Section, the party seeking indemnification will promptly notify the other party of the claim for which indemnity is sought and reasonably cooperate with the other party in defending the claim. The other party may join in the defense with its own counsel at its own expense. Any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed.

THIS SECTION STATES EACH PARTY’S SOLE REMEDY AND THE ENTIRE LIABILITY OF THE OTHER PARTY AND ITS LICENSORS AND BUSINESS PARTNERS FOR CLAIMS AND EXCLUDED CLAIMS.

XIII. Assignment

These Terms and Conditions are binding upon and inure to the benefit of the parties and their respective successors and assigns. Neither these Terms and Conditions nor any of the rights, interests or obligations under it shall be assigned, in whole or in part, by operation of law or otherwise by You without the prior written consent of Eagle Point. In no event shall any assignment be to a competitor of Eagle Point without its prior express approval, which Eagle Point may grant or withhold at its sole option and in its sole discretion. Any assignment shall require the successor to be bound by the terms and conditions of these Terms and Conditions and any outstanding balances owed to Eagle Point or an authorized Business Partner up to the date of a valid transfer to be fully paid prior to the effectiveness of such assignment. All other transfers by You shall be null and void. Eagle Point may assign these Terms and Conditions.

XIV. Dispute Resolution, Governing Laws, Jurisdiction and International Arbitration

If a dispute arises between the parties relating to the interpretation or performance of these Terms and Conditions or the grounds of termination thereof, the parties agree to first hold a meeting regarding the dispute, to attempt to negotiate in good faith a resolution prior to pursuing other remedies. If within thirty (30) days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

These Terms and Conditions will be governed by and construed in accordance with the laws of

• The State of Delaware (and, to the extent controlling, the federal laws of the United States), if You as Licensee are located or acquired the Services in a country in the Americas (including the Caribbean) or any other country not specified in this Section; or
• The United Kingdom, if You as Licensee are located in or acquired the Services in a country in Europe, Africa or the Middle East.
• The laws of such jurisdictions shall govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) these Terms and Conditions.

In addition, You and Eagle Point agree that any claim, action or dispute arising under or relating to these Terms and Conditions will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the Superior Court of the State of Iowa, County of Dubuque, or the United States District Court for the Northern District of Iowa, except that if You are located in a country in Europe, Africa or the Middle East, any such claim or dispute arising out of or relating to these Terms and Conditions shall be finally settled by arbitration conducted in the English language and administered by the London Court of International Arbitration (“LCIA”) under its Commercial Arbitration Rules. The arbitration tribunal will be composed of three (3) arbitrators, of which the parties shall appoint one each, whereas the court of arbitration will appoint the third arbitrator. The place of arbitration shall be London, England. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Nothing in the foregoing will prevent Eagle Point from bringing an action in a court or tribunal of competent jurisdiction for infringement of intellectual property rights in any country where such infringement is alleged to occur.

XV. General Terms

To the extent that any provision of these Terms and Conditions is found by a court of competent jurisdiction to be void or unenforceable, such provision shall be without effect and the remainder of these Terms and Conditions shall be enforced to the full extent of the law. No action arising out of or related to these Terms and Conditions may be brought by either party more than one year after the cause of action was or reasonably should have been discovered or, in the case of an action for nonpayment, more than two years after the date the last payment was due. A waiver of any breach of these Terms and Conditions shall not constitute a waiver of any other breach or covenant of these Terms and Conditions. A waiver shall not be effective unless made in writing. Neither party shall be liable for any delay or failure (other than delays or failure in payment obligations) due to acts of God, natural disaster, labor disputes, changes in government policy/law, riots, war, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, disruptions caused by the Internet or service providers, or other occurrences which are beyond either Party’s reasonable control (collectively, “Force Majeure”). If Eagle Point is delayed in the performance of any delivery of the Services or provision of anything else provided under these Terms and Conditions due to Force Majeure, such delivery or services shall take place as soon as is reasonably possible.

XVI. GDPR

If You or Your Permitted Users are citizens or residents of the European Union, then the Data Processing Addendum found at eaglepoint.com/dpa forms a part of these Terms and Conditions.

XVII. Eagle Point Chatbot

If You or Your Permitted Users use the Eagle Point Chatbot Services, then the Eagle Point Supplemental Terms and Conditions found at www.eaglepoint.com/aichat-supplemental-terms/ form a part of these Terms and Conditions.

XVIII. Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM. YOU FURTHER AGREE THAT THESE TERMS AND CONDITIONS AND ANY APPLICABLE ORDER FORM ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND EAGLE POINT AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THESE TERMS AND CONDTIONS. PURCHASE ORDERS AND OTHER ORDERING DOCUMENTS NOT PREPARED BY EAGLE POINT AND SUBMITTED BY YOU WILL NOT AMEND OR SUPERSEDE THESE TERMS AND CONDITIONS AND ARE HEREBY REJECTED. PLEASE INDICATE THAT YOU HAVE READ AND THAT YOU UNDERSTAND AND ACCEPT THE FOREGOING TERMS AND CONDITIONS BY SELECTING THE “ACCEPT” OPTION BELOW.