WilloWare Incorporated End-User License Agreement (EULA)
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (Referred herein as “You” (as such term is further defined below)) AND WILLOWARE INC. (“WilloWare”). BEFORE INSTALLING, ACCESSING, OR USING ANY PART OF THE SOFTWARE PROVIDED WITH THIS AGREEMENT (the “Software” (as such term is further defined below)), YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS END — USER LICENSE AGREEMENT (the “Agreement”), AS THEY GOVERN YOUR — USE OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, ACCESS, OR — USE THIS SOFTWARE. WILLOWARE IS WILLING TO LICENSE THE — USE OF THE SOFTWARE TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
LICENSE GRANT
Conditioned on your continued compliance with the terms and conditions of this Agreement and the payment of all applicable fees, this Agreement provides You with a personal, limited, non-exclusive, non-transferable, and non-sublicenseable license to use the Software for Your personal and internal business purposes. For purposes of this Agreement, “You” means the company, entity or individual whose funds are used to pay the license fee and any of such company or entity’s employees who use the Software at the site area designated in the order form provided by WilloWare for the Software. References to “You” throughout shall mean and include both the named company, entity, or individual and any individual that downloads, installs, accesses, or otherwise Uses the Software. In accordance with the foregoing, You acknowledge and agree that You are solely responsible for any actions or omissions taken by any individual end user that downloads, installs, accesses, or otherwise Uses the Software on your behalf or through your password, account, or other access credentials. “Use” means storing, loading, installing, executing or displaying the Software in (object or machine-readable form) on a computer or other electronic device.
This Agreement will apply to any software of WilloWare (and any version thereof) that You download, install, access, or otherwise Use. But, You acknowledge and agree that this Agreement and the license grant herein remains conditional on paying all required fees for the Software as reflected in the order form and invoice You receive from WilloWare.
RESTRICTIONS
The foregoing license is limited. You therefore may not: (i) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the Software (or any part thereof) in any manner not expressly permitted by this Agreement, including, without limitation, for further re-sale or distribution, (ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of the Software (or any part thereof); (iii) access, link to, or use any source code from the Software (or any part thereof); (iv) erase or remove any proprietary or intellectual property notice contained in or on the Software (or any part thereof); or (v) use or permit use of the Software (or any part thereof) for or by any person or entity. In addition, You shall not enter into any contractual relationship or other legally binding obligation with any third party or person which shall have the purpose or effect of encumbering WilloWare or the use of the Software (or any part thereof). You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.
PROPRIETARY RIGHTS
This Agreement does not provide a transfer or assignment of any rights. WilloWare retains all ownership right, title and interest in and to the Software, including its associated interfaces, programs, software, code, and documentation. Except as expressly provided herein, WilloWare does not grant any other express or implied right to You or any other person under any intellectual or proprietary rights. Accordingly, unauthorized use of the Software may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law.
You acknowledge and agree that in connection with this Agreement or your use of the Software You may receive or gain access to the confidential, proprietary, or sensitive information of WilloWare and/or its licensors (“Confidential Information”). Moreover, You acknowledge and agree that the Software is also Confidential Information. Accordingly, with respect to the Confidential Information of WilloWare, You agree to secure and protect the confidentiality of the Confidential Information of WilloWare (and/or its licensors) in a manner consistent with the maintenance of WilloWare’s rights therein, using at least as great a degree of care as You use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You also acknowledge and agree that any disclosure or unauthorized use of such Confidential Information would be detrimental to WilloWare and its business and goodwill. You therefore shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement. All Confidential Information of WilloWare shall remain the exclusive property of WilloWare. These restrictions do not apply to Confidential Information which You (i) are required by law or regulation to disclose, but only to the extent and for the purposes of such law or regulation; (ii) disclose in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order, and only if You first notify WilloWare of the order and permit WilloWare to seek an appropriate protective order or move to quash or limit such order; or (iii) disclose with written permission of WilloWare, in compliance with any terms or conditions set by WilloWare regarding such disclosure. Upon termination or expiration of this Agreement, You shall return to WilloWare or destroy, at the request of WilloWare, all Confidential Information of WilloWare and certify in writing to WilloWare, within ten (10) days following termination or expiration, that all such Confidential Information has been returned or destroyed.
GOVERNMENT RESTRICTED RIGHTS
As applicable, the Software is provided to the United States of America and/or any other country and its or their respective instrumentalities, agencies, or offices, regardless of form (collectively, the “Government”) with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at D.F.A.R.S. 252.227-7013, subparagraph (g) of the Rights in Data – General clause at 48 C.F.R. 52.227-14, or subparagraphs (b)(1) and (2) of the Commercial Computer Software–Restricted Rights at 48 C.F.R. 52.227-19, as applicable. All WilloWare products and materials, including the Software, are commercial in nature and were not first produced in the performance of any Government contract. Accordingly, the software and documentation available through the Software are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. For any use of the Software that would require compliance by WilloWare with a particular Government requirement not identified herein or that would affect WilloWare’s rights, the applicable Government entity, agency, or office must notify WilloWare of said Government requirement and obtain a waiver or exemption from such requirements for the benefit of WilloWare before any Government access to the Software.
WARRANTY & WARRANTY DISCLAIMER
You represent and warrant to WilloWare that (i) You are at least the legal age of majority elsewhere, (ii) You are authorized to enter into this Agreement on behalf of yourself, your authorized user(s), and the entity named on the account with WilloWare (in the event You access the Software and/or agree to this Agreement on behalf of such entity), (ii) You are authorized and able to fulfill and perform your obligations as specified herein, (iii) any information or data provided to WilloWare by You will not violate any law or regulation or any third party or person’s right; and (iv) You have all required permits, licenses, and other governmental authorizations and approvals to use the Software.
THIS SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
YOU BEAR ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. WILLOWARE DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS ERROR FREE.
WILLOWARE FURTHER DISCLAIMS ALL WARRANTIES RELATING TO THIS SOFTWARE, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR AVAILABLE UNDER ANY STATE STATUTE GOVERNING SOFTWARE OR INFORMATION SERVICES.
LIMITATION OF LIABILITY
You acknowledge and agree that WilloWare shall not be liable or responsible for any claim, damage, or loss resulting from a cause beyond WilloWare’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions.
MOREOVER, YOU AGREE THAT IN NO EVENT SHALL WILLOWARE BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR — USE OF THE SOFTWARE OR ANY INFORMATION OR MATERIALS AVAILABLE THROUGH THE SOFTWARE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF WILLOWARE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN ADDITION, WILLOWARE SHALL ASSUME NO RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS THAT MAY RESULT DIRECTLY OR INDIRECTLY FROM THE RESULTS YOU ACHIEVE USING THE SOFTWAR OR FROM THE COMMUNICATIONS OR INTERACTIONS YOU ESTABLISH WITH OTHER PERSONS OR ENTITIES USING THE SOFTWARE OR WHICH RELATE TO THE STORAGE OF ANY DATA OR FOR THE DELIVERY, SECURITY, OR AVAILABILITY OF ANY DATA. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF WILLOWARE FOR ANY REASON WHATSOEVER RELATED TO — USE OF THE SOFTWARE OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED $5,000.
SEVERABILITY
In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, You agree that unless it materially affects the entire intent and purpose of this Agreement, the invalidity, voidness, or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
GOVERNING LAW
This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of Illinois, U.S.A., as applied to agreements entered into and completely performed in the State of Illinois. The United States District Court for the Central District of Illinois will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and You hereby consent to such exclusive and personal jurisdiction and venue. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. You access and use the Software on your own volition and are responsible for compliance with all applicable local laws with respect to your use. Any claim You might have against WilloWare must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.
YOUR RESPONSIBILITIES
You must refrain from creating, beta testing, or marketing a product or services that compete with the Software and agree to cooperate reasonably with WilloWare to evaluate the Software, including, without limitation, running such test suites and other test programs as WilloWare shall reasonably designate and promptly notifying WilloWare of any failure, error, or other malfunction of any part of the Software. In addition, You agree, if possible, to provide the data necessary to reproduce any errors and anomalies in the event such data is needed and meet or confer with WilloWare to discuss such log or summary in detail and to diagnose or correct any reported errors or anomalies. Resolution of such errors or anomalies may require payment of additional fees for WilloWare’s provision of support services. At all times, You also agree to conduct your activities on or through the Software in accordance with this Agreement and without violation of third party rights. In addition, You agree to assume all responsibility for your use, and the results of your use, of the Software, including meeting any requirements of your contracts with third parties or other persons. Accordingly, by installing, accessing, or using the Software, You agree to be responsible for and to abide by all applicable local, state, national, and international laws, regulations, rules, and guidelines with respect to your use of the Software and any activities You conduct using the Software. You also represent that You (or the person executing or acting under this Agreement on behalf of your entity or organization) will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Software, including, without limitation, when You provide information via a the Software registration or submission form or when providing any information regarding the entity named on the registration account. Subject to WilloWare’s right to monitor and audit compliance, You acknowledge and agree that it is your responsibility to maintain compliance with the terms and conditions of this Agreement. Although WilloWare uses commercially reasonable efforts to maintain the Software, You agree that it shall be solely your responsibility for maintaining copies, backing-up, and/or archiving all of your data or information which You use on or in connection with the Software. You also acknowledge and agree that use of the Internet and access to the Software is solely at your own risk. To the extent You choose to access and use the Software, You do so at your own initiative and are responsible for compliance with any local applicable laws.
WILLOWARE ENTITLED TO INJUNCTIVE RELIEF AND ATTORNEYS FEES
You acknowledge that WilloWare reserves the right, at any time and without notice, to monitor compliance with the terms and conditions of this Agreement and to take appropriate steps to otherwise protect its rights in the Software by monitoring use of the Software and by incorporating security and management technology into the Software. You shall therefore not, nor shall You permit any third party to, disable, circumvent, or otherwise avoid any advertisement or security device, mechanism, protocol, or procedure established by WilloWare for use of or with the Software. WilloWare will also comply with all court orders involving requests for such information. In such event, WilloWare shall be relieved of its obligations under this Agreement or any other applicable agreement with WilloWare during the period of suspension and shall not be found to be in breach of this Agreement or any other applicable agreement with WilloWare for such relief.
Without limiting any other remedy at law or equity available to WillowWare in the event of the unauthorized use of the Software or Your breach of any of the provisions set forth in this agreement, WilloWare shall have the right to an immediate injunction enjoining You from the unauthorized use of the Software or the continued breach of this agreement. Every right and remedy of WilloWare shall be cumulative and WilloWare, in its sole discretion, may exercise any and all rights stated in this agreement or otherwise available at law or in equity.
In the event it becomes necessary for WilloWare to institute proceedings at law against You to prevent the unauthorized use of the Software or enforce any of the provisions of this agreement, You hereby agree that WilloWare shall be entitled to have and obtain as a part of any judgment rendered against You, WilloWare’s court costs and reasonable attorney’s fees incurred in connection with such proceedings.
TERM AND TERMINATION
This Agreement and your right to use the Software will take effect at the moment You click “ACCEPT” or You register with or install, download, or use the Software and is in effect so long as You pay all applicable fees and charges for the designed license period in a timely manner or until terminated earlier as set forth below. This Agreement will terminate automatically if You click “DECLINE.” WilloWare also reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or submission of information, any failure to pay any applicable fee, or any actions or omissions that violate any term or condition of this Agreement, to terminate immediately this Agreement with You for breach. You acknowledge and agree that WilloWare shall have the sole right to determine in its reasonable discretion whether You are engaging in any unauthorized activity and/or violating any term or conditions of this Agreement. Termination or expiration of this Agreement will be effective without notice. WilloWare shall not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this Agreement in accordance with this section.
In the event of termination, all applicable provisions of this Agreement will survive termination, as outlined below. In particular, any fees or charges that were due to WilloWare prior to termination or expiration shall remain and shall become immediately payable to WilloWare upon termination. Upon termination or expiration, You must also return to WilloWare and/or destroy or delete from your computer, laptop, work station, or network all copies of the Software (and any associated materials) in your possession. If requested by WilloWare, You shall provide written confirmation of your compliance with this obligation. Any licenses from WilloWare and any other right to use the Software shall immediately cease upon termination of this Agreement. Moreover, the provisions concerning WilloWare’s proprietary rights, confidentiality, your representations and warranties, warranty disclaimer, limitation of liability, governing law, enforcement, termination, entire agreement, and notice terms will survive the termination or expiration of this Agreement for any reason.
AMENDMENTS AND SOFTWARE UPDATES
WilloWare reserves the right to change the terms and conditions of this Agreement by providing You in writing or electronically a copy of such revised terms (or notice thereof). WilloWare also possesses the exclusive right to provide updates, upgrades and/or changes to any aspect of the Software at any time. However, WilloWare has no obligation to provide such updates, upgrades or changes. Notwithstanding Your right to terminate this Agreement, Your continued use of the Software following any such change to the Software will be deemed acceptance of any change to this Agreement or the Software upon commencement of the next designated renewal license period.
RESERVED RIGHTS
All rights not expressly granted here are reserved to WilloWare.
ENTIRE AGREEMENT
This Agreement represents the entire agreement between You and WilloWare and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and WilloWare with respect to the Software.
OTHER TERMS AND CONDITIONS.
Additional notices, terms, and conditions, including, without limitation, the order form and installation instructions for the Software provided to You by WilloWare, may apply to the use of the Software. You agree to abide by such other notices, terms, and conditions (as applicable).
NOTICES
All notices, demands, and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing (electronic or tangible copy) and shall be deemed to have been given when delivered, by first class U.S. Mail, return receipt requested, in person, by commercial overnight courier (e.g., FEDERAL EXPRESS), with constructive receipt deemed to have occurred three (3) calendar days after being mailed, or when receipt is acknowledged if sent by facsimile or other electronic transmission device.