This agreement (the "Agreement") is a binding contract between You and Vendor (as defined below). PLEASE READ THE TERMS AND CONDITIONS OF THE AGREEMENT CAREFULLY BEFORE INSTALLING, DOWNLOADING, ACCESSING OR USING THE SOFTWARE SYSTEM.
(A) YOU ARE LICENSED TO USE THE SOFTWARE SYSTEM ONLY IF YOU ACCEPT
ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT SET FORTH BELOW.
(B) READ THIS AGREEMENT CAREFULLY. YOU MAY INDICATE YOUR ACCEPTANCE
OF THIS AGREEMENT BY CLICKING ON THE [ACCEPT] BUTTON BELOW,OR
BY INSTALLING, DOWNLOADING, ACCESSING OR USING THE SOFTWARE
SYSTEM OR ANY PART THEREOF. IN DOING SO YOU AGREE TO BE BOUND
BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY
DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS,
AND YOU AGREE THAT THIS AGREEMENT IS AS BINDING AND ENFORCEABLE
AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
(C) IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT,
CLICK ON THE [DECLINE] BUTTON BELOW IN WHICH CASE YOU WILL NOT
BE PERMITTED TO INSTALL, DOWNLOAD ACCESS OR USE THE SOFTWARE
SYSTEM.
1. DEFINITIONS
In addition to the terms defined elsewhere in this Agreement,
the following terms, when used in this Agreement, shall have the following
meanings:
1.1 "You" means the single end-user customer or organization entering into
this Agreement.
1.2 "Vendor" means Fastenal Company, a Minnesota company having its
primary place of business at 2001 Theurer Boulevard, Winona, Minnesota
55987.
1.3 "Client Software" means that portion of the Apex Enterprise Application
Platform (Apex EAP) which resides on a Device, including any instructions
or statements in machine readable form, and related documentation, user
manuals and listings, training documentation, whether in machine-readable,
human-readable form or printed form, and all copies of the foregoing, and
any supplements, updates or fixes thereto.
1.4 "Software Service" means the Apex Enterprise Application Platform
(Apex EAP) online service and any supplements, updates or fixes therefor.
1.5. "Software System" means the Client Software and the Software Service.
1.6 "Device" means an internet-based remote and automated industrial
vending and point-of-work technology which utilizes or interacts with, or is
configured to utilize or interact with, the Software Service, and which is
properly in your possession and control.
1.7 "Authorized Server" means a server and computer system that is remote
from You and your Device, not controlled by You, which hosts the Software
Service.
2. LICENSE GRANT AND RESTRICTIONS
2.1 Limited License Grant: So long as You are in compliance with all terms and
conditions of this Agreement, You are granted a non-exclusive,
non-sublicensable, personal, non-assignable, non-transferable right to install
and internally use the Client Software on a Device. In addition, so long as
You are in compliance with all terms and conditions of this Agreement, You are
granted a non-exclusive, non-sublicensable, personal, non-assignable,
non-transferable right and license to internally use the Software Service in
conjunction with a Device via an Authorized Server. You agree and
acknowledge that the Client Software and Software Services shall be used only
in conjunction with a single Device purchased, leased, otherwise properly
commercially acquired from Vendor.
2.2 Server Access: Vendor shall provide you reasonable access via internet
connectivity to an Authorized Server. Vendor reserves the right to change the
identity, equipment and/or configuration of the Authorized Server at any time.
You shall provide and maintain an ISP account with a PPTP internet connection
for communicating with the Authorized Server. Vendor will provide You all
necessary information to access the Software Service on an Authorized Server
via the Client Software, including internet address and/or portal information,
username and password information which shall be considered confidential
information and treated as such by You.
2.3 Your Restrictions: You hereby agree that you shall not:
(a) use the Software System for any purpose other than the operation of
your business in its ordinary course;
(b) make any copies of the Client Software;
(c) use the Software System otherwise than in accordance with the express
terms of this Agreement;
(d) permit any third party to use or access Software System in any way
whatsoever without Vendor's prior written consent, or use the Software
System for the benefit of any third party, or use the Software System in
any manner to provide service bureau, leasing, time-sharing or other
computer services to third parties;
(e) adapt, modify, decompile, disassemble, decrypt, extract, or otherwise
reverse engineer the Software System or permit any third party to do so
unless local law gives you the right to reduce the Software System to
human readable form (whether by reverse engineering, decompilation or
disassembly) in order to obtain information necessary to ensure
interoperability of the Software System with independently created
software, in which case you shall first notify Vendor of the information
reasonably required in this respect. Vendor shall have the right to impose
reasonable conditions such as a reasonable fee for providing such
information to You;
(f) create derivative works based upon any of the Software System;
(g) export or seek to export all or part of the Software System;
(h) attempt to circumvent any technological measures that control or
restrict access to or use of any portion of the Software System;
(i) share the internet address and/or portal information of an Authorized
Server with any third party, or share your username and password
information with any third party;
(j) request, permit or authorize anyone to provide any maintenance or
support services with respect to the Software System other than Vendor
or its authorized representatives; or
(k) use the Software System other than in conjunction with a single Device
purchased, leased, otherwise properly commercially acquired from Vendor.
2.4 Your Obligations: You hereby agree that you will:
(a) institute and maintain appropriate security measures to safeguard
the Client Software and access to the Software Services, or any other
information designated by Vendor as confidential, from access or use
by any unauthorized party;
(b) retain the Client Software and any authorized copies thereof in your
possession under your effective control;
(c) ensure that all proprietary rights notices on the Client Software are
retained thereon and reproduced and applied to any authorized copies of
the same;
(d) install, maintain,and properly use reasonable security features such as
firewalls and security systems to protect the Software System; and
(e) notify Vendor immediately if you become aware of any unauthorized
use of the whole or any part of the Software System.
2.5 Vendor Replacement of Software: Vendor shall have the right to replace
or change all or any part of the Software System so long as the revised
Software System provides substantially the same functionality as the
Software System originally provided to or accessed by You.
2.6 Selection and Nature of Software System: You accept full responsibility for
the selection of the Software System to achieve its intended results. You
acknowledge that data collected and provided by the Software System is
subject to the possibility of machine errors, omissions, delays and losses,
including inadvertent loss of data or damage to media that may give rise to
loss or damage. Vendor shall not be liable for any such errors, omissions,
delays, or losses. You are also responsible for complying with all local,
state, and federal laws pertaining to the use and disclosure of any data.
3. TERM AND TERMINATION
3.1 Vendor Termination: Vendor may terminate this Agreement and the licenses
and rights granted here under to You if:
(a) you are in breach of any material term of this Agreement; or
(b) you fail to pay any amounts owed to Vendor for the supply, support
or maintenance of the Software System, or any amounts owed to Vendor
under any Agreement related to the Software System.
3.2 Your Termination: You may terminate this Agreement at any time
provided You provide written notice to Vendor, immediately and on a
going forward basis cease all downloading, installing, access and use
of the Software System, and return the Device upon which the Client
Software resides to Vendor.
3.3 Effects of Termination: Upon termination of this Agreement for any reason:
(a) all rights, privileges and licenses granted to you under this Agreement
shall cease;
(b) you shall immediately and on a going forward basis cease all downloading,
installing, access and use of the Software System;
(c) you shall immediately pay to Vendor any amounts owed to Vendor for
the supply, support or maintenance of the Software System;
(d) Vendor shall be permitted to de-activate or block any access to the
Authorized Server to prevent your further downloading, installing, access
and use of the Software System; and
(e) Any termination of this Agreement shall not effect the continuing
obligations of the parties described in Sections 2.3, 2.4, 2.6, 3.3, 4.1, 5.5,
5.6, 6.1, 6.2 and 7.1- 7.8, which shall survive termination.
4. OWNERSHIP
4.1 Your Ownership Acknowledgement: You agree and acknowledge that the
Software System is owned by Vendor and/or Vendor's licensor. The Software
System may contain structures, data, concepts formulas, algorithms and code,
which are the valuable trade secrets owned by Vendor and/or Vendor's licensor,
and is also protected by copyright, trade secret laws, moral rights provisions
and international treaty provisions. Vendor and Vendor's licensor reserve all
rights not expressly granted to You in this Agreement.
5. LIMITED WARRANTY AND DISCLAIMERS OF WARRANTY
5.1 Limited Warranty: Vendor warrants that the Software System will perform
substantially in accordance with Vendor's then-current specifications therefor
as published by Vendor for a period of thirty (30) days from the date of first
download, installation, access or use by You (hereinafter "Limited Warranty").
5.2 Limited Nature of Warranty: The Limited Warranty is void if the failure
of the Software System to meet Vendor's then-current specifications is due to
software or hardware products not provided by Vendor, your failure to properly
maintain your site or equipment on which the Software System is installed, used
or accessed, or your misuse or improper use of the Software System.
5.3 IMPLIED WARRANTY OR CONDITION: IF AN IMPLIED WARRANTY OR
CONDITION IS CREATED BY YOUR STATE/JURISDICTION AND FEDERAL OR
STATE/PROVINCIAL LAW PROHIBITS DISCLAIMER OF SUCH AN IMPLIED
WARRANTY OR CONDITION, YOU SHALL ALSO HAVE SUCH AN IMPLIED
WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED
DURING THE THIRTY DAY PERIOD OF THIS LIMITED WARRANTY.
FOR ANY DEFECTS DISCOVERED AFTER THE THIRTY DAY PERIOD, THERE
IS NO WARRANTY OR CONDITION OF ANY KIND.
5.4 SUPPLEMENT OR UPDATES: ANY SUPPLEMENTS OR UPDATES TO THE
SOFTWARE SYSTEM, INCLUDING WITHOUT LIMITATION, ANY (IF ANY)
FIXES PROVIDED TO YOU AFTER THE EXPIRATION OF THE THIRTY DAY
LIMITED WARRANTY PERIOD ARE NOT COVERED BY ANY WARRANTY OR
CONDITION,EXPRESS, IMPLIED OR STATUTORY.
5.5 SOLE WARRANTY: THE LIMITED WARRANTY SET FORTH ABOVE IS THE
ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER
EXPRESS WARRANTIES OR SIMILAR OBLIGATIONS (IF ANY) CREATED BY
ANY ADVERTISING, DOCUMENTATION, PACKAGING, OR OTHER
COMMUNICATIONS. EXCEPT FOR THE LIMITED WARRANTY SET
FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, VENDOR PROVIDES THE SOFTWARE SYSTEM "AS IS" AND WITH ANY
AND ALL FAULTS, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES AND
CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR
CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR
PURPOSE, OF RELIABILITY OR AVAILABILITY,OF ACCURACY OR
COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT,
OR OF LACK OF VIRUSES.
5.6 NO OTHER WARRANTIES: VENDOR PROVIDES NO WARRANTIES OR
CONDITIONS OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR
NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE SYSTEM.
6. REMEDY FOR BREACH OF WARRANTY
6.1 Exclusive Remedy: Vendor's entire liability and your exclusive remedy for
any breach of the Limited Warranty and for any other breach of the Agreement
or for any other liability relating to the Software System shall be, at Vendor's
option, limited to one of the following: (a) return of the amount paid (if any)
for the Software System; or (b) repair or replacement of the Software System
that does not meet the Limited Warranty or causes such breach. You will
receive the remedy elected by Vendor without charge, except that You are
responsible for any expenses that Vendor may reasonably incur in delivering
the elected remedy to You. Any replacement Software System provided under
the Limited Warranty will be warranted for the remainder of the original
warranty period or thirty (30) days, whichever is longer, and Vendor will
use commercially reasonable efforts to provide the remedy to You within a
commercially reasonable time of your compliance with Vendor's warranty
remedy procedures.
6.2 NO OTHER DAMAGES: EXCEPT FOR ANY REFUND ELECTED BY VENDOR,
YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED
TO CONSEQUENTIAL DAMAGES, IF THE SOFTWARE SYSTEM DOES NOT MEET
VENDOR'S LIMITED WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS
INTERRUPTION, FOR LOSS OF PRIVACY, OR FOR ANY OTHER PECUNIARY OR
OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED
TO THE USE OF OR INABILITY TO USE THE SOFTWARE SYSTEM OR
OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS
AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF
WARRANTY OF VENDOR, AND EVEN IF VENDOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
7. MISCELLANEOUS
7.1 Relationship of Parties: Nothing contained in this Agreement is intended to
implicitly, or is to be construed to, constitute a partnership in the legal
sense. No party hereto shall have any express or implied right or authority
to assume or create any obligations on behalf of or in the name of the other
party or to bind the other party to any contract, agreement, or undertaking
with any third party.
7.2 Force Majeure: Neither party will be liable for any failure or delay in
performing any obligation under this Agreement that is due to causes beyond
its reasonable control and without its fault or negligence, including, without
limitation, acts of God, natural catastrophes or governmental acts, interruption
of power or of other essential services or supplies.
7.3 No Waiver: No delay or omission by either party hereto to exercise any
right or power occurring upon any noncompliance or default by the other party
with respect to any of the terms of this Agreement shall impair any such right
or power or beconstrued to be a waiver thereof. A waiver by either of the
parties hereto of any of the covenants, conditions, or agreements to be
performed by the other shall not be construed to be a waiver of any succeeding
breach thereof or of any covenant, condition, or agreement contained herein.
7.4 Entire Agreement: This Agreement constitutes the entire Agreement
between the parties, and there are no understandings or agreements relative
hereto other than those that are expressed herein. No change, amendment,
waiver, or discharge hereof shall be valid unless in writing and executed by
the party against whom such change, waiver, or discharge is sought to be
enforced.
7.5 Severability Enforcement: The invalidity of any portion of this
Agreement shall not affect the validity, force or effect of the remaining
portions hereof. If it is ever held that any restriction hereunder is too
broad to permit enforcement of such restriction to its fullest extent, each
party agrees that a court of competent jurisdiction may enforce such
restriction to the maximum extent permitted by law, and each party hereby
consents and agrees that such scope may be judicially modified accordingly
in any proceeding brought to enforce such restriction.
7.6 Parties Benefited Assignment: The provisions of this Agreement shall inure
to the benefit of and be binding upon the parties hereto; their successors and
assigns, but You may not assign this Agreement or any rights hereunder without
the express written consent of Vendor, and any such assignment or attempted
assignment without Vendor's consent shall be void. Vendor may freely assign its
rights and delegate its duties under this Agreement without your consent.
7.7 Neutral Interpretation: This Agreement shall be deemed to have been
drafted jointly by the parties, and no rule of construction or interpretation
shall apply against any particular party based on a contention that the
Agreement was drafted by one of the parties.
7.8 Applicable Law: This Agreement is governed by the laws of the State
of Minnesota, United States of America.