USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THE SOFTWARE. USE OF SOFTWARE INDICATES YOUR COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT PURCHASE ORDER TERMS AND CONDITIONS SHALL NOT APPLY.
LICENSE AGREEMENT (“Agreement”)
This is a legal agreement concerning the use of Software between you, the end user, as an authorized representative of the company acquiring the license, and WholeLogic, Inc., an Idaho corporation, acting directly or through its subsidiaries or authorized distributors (collectively “WholeLogic”). Except for license agreements related to the subject matter of this license agreement which are physically signed by you and an authorized representative of WholeLogic, this Agreement and the applicable purchase agreement for the WholeLogic system contain the parties’ entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements. If you do not agree to these terms and conditions, promptly return or, if received electronically, certify destruction of Software and all accompanying items within five days after receipt of Software and receive a full refund of any license fee paid.
1. GRANT OF LICENSE. The software programs you are installing, downloading, or have acquired with this Agreement, including any updates, modifications, revisions, copies, documentation and design data (“Software”) are copyrighted, trade secret and confidential information of WholeLogic or its licensors who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. The Software or portions thereof are developed under license from Washington State University. WholeLogic grants to you, subject to payment of appropriate license fees, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object-code form; (b) for your internal business purposes; (c) for the term; and (d) on the computer hardware and at the site authorized by WholeLogic. WholeLogic’s standard policies and programs, which vary depending on license fees paid or service purchased, apply to the following: (a) relocation of Software; (b) use of Software, which may be limited, for example, to execution on the authorized hardware or for a restricted period of time (such limitations may be technically implemented through the use of authorization codes or similar devices); and (c) support services provided, including eligibility to receive telephone and online support, updates, modifications, updates, and revisions. You acknowledge and agree that you will not receive updates or modifications of the Software if you do not participate in WholeLogic’s support and upgrade program.
2. BETA CODE. Portions or all of certain Software may contain code for experimental testing and evaluation (“Beta Code”), which may not be used without WholeLogic’s explicit authorization and separate agreement. Upon WholeLogic’s authorization, WholeLogic grants to you a temporary, nontransferable, nonexclusive license for experimental use to test and evaluate the Beta Code without charge for a limited period of time specified by WholeLogic. This grant and your use of the Beta Code shall not be construed as marketing or offering to sell a license to the Beta Code, which WholeLogic may choose not to release commercially in any form. If WholeLogic authorizes you to use the Beta Code, you agree to evaluate and test the Beta Code under normal conditions as directed by WholeLogic. You will contact WholeLogic periodically during your use of the Beta Code to discuss any malfunctions or suggested improvements. You agree that any written evaluations and all inventions, product improvements, modifications or developments that WholeLogic conceived or made during or subsequent to this Agreement, including those based partly or wholly on your feedback, will be the exclusive property of WholeLogic. WholeLogic will have exclusive rights, title and interest in all such property. The provisions of this Section 2 shall survive the termination or expiration of this Agreement.
3. RESTRICTIONS ON USE. You may copy Software only as reasonably necessary to support the authorized use. Each copy must include all notices and legends embedded in Software and affixed to its medium and packaging as received from WholeLogic. All copies shall remain the property of WholeLogic or its licensors. You shall maintain a record of the number and primary location of all copies of Software and shall make those records available to WholeLogic upon request. You shall not make Software available in any form to any person other than employees and on-site contractors, excluding WholeLogic’s competitors, whose job performance requires access and who are under obligations of confidentiality. You shall take appropriate action to protect the confidentiality of Software and ensure that any person permitted access to Software does not disclose it or use it except as permitted by this Agreement. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory local law, you shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive from Software any source code. You may not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it, whether by operation of law or otherwise (“attempted transfer”), without WholeLogic’s prior written consent and payment of WholeLogic’s then-current applicable transfer charges. Any attempted transfer without WholeLogic’s prior written consent shall be a material breach of this Agreement and may, at WholeLogic’s option, result in the immediate termination of the Agreement and licenses granted under this Agreement. The terms of this Agreement, including without limitation, the licensing and assignment provisions shall be binding upon your successors in interest and assigns. The provisions of this Section 3 shall survive the termination or expiration of this Agreement.
4. LIMITED WARRANTY.
4.1 WholeLogic warrants that during the warranty period Software, when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual. WholeLogic does not warrant that Software will meet your requirements or that operation of Software will be uninterrupted or error free. The warranty period is one year starting on the 15th day after delivery or upon installation, whichever first occurs. You must notify WholeLogic in writing of any nonconformity within the warranty period. This warranty shall not be valid if Software has been subject to misuse, unauthorized modification, or improper installation. Neither WholeLogic nor its licensors will be liable for any damages to your computer systems, or arising from any malpractice claims. WHOLELOGIC’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE MODIFICATION OR REPLACEMENT OF SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY, PROVIDED YOU HAVE OTHERWISE COMPLIED WITH THIS AGREEMENT AND ANY OTHER AGREEMENT WITH WHOLELOGIC. WHOLELOGIC MAKES NO WARRANTIES WITH RESPECT TO: (A) SERVICES; (B) SOFTWARE WHICH IS LICENSED TO YOU FOR A LIMITED TERM OR LICENSED AT NO COST; OR (C) EXPERIMENTAL BETA CODE; ALL OF WHICH ARE PROVIDED “AS IS.”
4.2 THE WARRANTIES SET FORTH IN THIS SECTION 4 ARE EXCLUSIVE. NEITHER WHOLELOGIC NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SOFTWARE OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. WHOLELOGIC AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
5. LIMITATION OF LIABILITY. EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE LAW, IN NO EVENT SHALL WHOLELOGIC OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF WHOLELOGIC OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WHOLELOGIC’S OR ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, WHOLELOGIC AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER. NEITHER WHOLELOGIC NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF SOFTWARE IN ANY APPLICATION WHERE THE FAILURE OR INACCURACY OF THE SOFTWARE MIGHT RESULT IN DEATH OR PERSONAL INJURY OR ANY SUCH RELATED CLAIMS.
6. COMPLIANCE WITH LAWS. You agree to comply with all governmental laws, ordinances, rules, and regulations applicable in the connection with your use of the Software, your data usage, the operation of your business, and in the fulfillment of your obligations under this Agreement and any purchase agreement, including, without limitation, the payment of all fees, duties or taxes assets related to the WholeLogic system or the Software, obtaining any governmental permits or approvals, and full compliance with any privacy laws related to customer data collected by you. You agree to carry adequate insurance coverage for the operation of your business, your use of the Software, and your indemnification obligations under this Agreement.
7. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS WHOLELOGIC AND ITS LICENSORS FROM ANY CLAIMS, LOSS, COST, DAMAGE, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF SOFTWARE, THE OPERATION OF YOUR BUSINESS, OR YOUR BREACH OF THIS AGREEMENT.
8. TERM. This Agreement remains effective until expiration or termination. All obligations and liabilities stated to or which by their nature are intended to survive the termination of this Agreement will be effective after termination. This Agreement will immediately terminate upon notice if you exceed the scope of license granted or otherwise fail to comply with the provisions of this Agreement or any purchase agreement. For any other material breach under this Agreement, WholeLogic may terminate this Agreement upon 30 days written notice if you are in material breach and fail to cure such breach within the 30 day notice period. The Software was provided for limited term use, and this Agreement will automatically expire at the end of the authorized term. Upon any termination or expiration, you agree to cease all use of Software and return it to WholeLogic or certify deletion and destruction of Software, including all copies, to WholeLogic’s reasonable satisfaction.
9. EXPORT. Software is subject to regulation by local laws and United States government agencies, which prohibit export or diversion of certain products, information about the products, and direct products of the products to certain countries and certain persons. You agree that you will not export any Software or direct product of Software in any manner without first obtaining all necessary approval from appropriate local and United States government agencies. The Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS.
10. AUDIT RIGHTS. You will monitor access to, location and use of Software. With reasonable prior notice and during your normal business hours, WholeLogic shall have the right to review your software monitoring system and reasonably relevant records to confirm your compliance with the terms of this Agreement, an addendum to this Agreement, any U.S. or other privacy laws, or any local export laws. Such review may include report log files that you shall capture and provide at WholeLogic’s request. WholeLogic shall treat as confidential information all of your information gained as a result of any request or review and shall only use or disclose such information as required by law or to enforce its rights under this Agreement or addendum to this Agreement. The provisions of this Section 10 shall survive the expiration or termination of this Agreement.
11. CONTROLLING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF COLORADO, USA. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of Fort Collins, Colorado. This section shall not restrict WholeLogic’s right to bring an action against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.
13. MISCELLANEOUS. You will pay amounts invoiced, in the currency specified on the applicable invoice, within 30 days from the date of such invoice. You understand and agree that you shall not receive access to the Software until payment is made in full. This Agreement may only be modified in writing by authorized representatives of the parties. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.