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SOFTWARE EVALUATION LICENSE AGREEMENT
This Evaluation License Agreement (this “Agreement”) is made and entered into as of the date you downloaded the WibiData Software by and between you and WibiData, Inc. (“WibiData”). If you are entering this agreement on behalf of an entity, you represent that you are authorized to act as an agent of the entity for the purposes of entering into this agreement. In this document the terms “You” and “Your” refer to you or the entity you represent.
By continuing to download and use this software you agree that you have read all of the terms and conditions of this agreement, that you understand all of these terms and conditions and that you agree to be bound by all of these terms and conditions. If you do not agree to any of the terms or conditions of this agreement, WibiData does not license this software for your use and you should discontinue the use of the software immediately and remove any copies that you have downloaded or installed.
In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you understand and agree as follows:
1. Grants and Restrictions. Subject to the terms and conditions of this Agreement and during the Term of any statement of work, WibiData grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access and use the software you downloaded from the WibiData website (“WibiData Software”) in object code form solely for your internal evaluation of the WibiData Software (the “License”). You acknowledge and agree that you may be required to supply additional software and systems as described in any documentation or terms or reasonably understood to be required in order to utilize the WibiData Software. Except as expressly authorized by this Agreement, you may not: (i) modify, copy, disclose, alter, translate or create derivative works of the WibiData Software; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the WibiData Software; (iii) use the WibiData Software, or allow the transfer, transmission, export or re-export of the WibiData Software or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; (iv) disassemble, decompile or reverse engineer the WibiData Software (except to the extent and for the express purposes authorized by applicable law); (v) use the WibiData Software in any capacity other than to evaluate the software for your own internal use; or (vi) cause or permit any other party to do any of the foregoing. In addition, you will not remove, alter or obscure any proprietary notices in the WibiData Software including copyright notices, or permit any other party to do so.
2. Feedback. Any suggestions, comments, feedback or software design or code (in any form) provided by you to WibiData with respect to the WibiData Software and/or WibiData (collectively, “Feedback”) will constitute Confidential Information of WibiData. Further, WibiData will be free to use, disclose, reproduce, license, distribute and otherwise exploit the Feedback provided to WibiData as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights (as defined below) or otherwise.
3. Ownership. As between the parties and subject to the license grant in Section 1, WibiData will, notwithstanding any terms to the contrary in this Agreement, own all right, title and interest in and to the WibiData Software and any and all Intellectual Property Rights embodied therein. For the purpose of this Agreement, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
4. Reporting. You acknowledge that the WibiData Software contains a diagnostic functionality in its default configuration. The diagnostic function checks for new available versions and reports a unique non-identifiable id information to WibiData. WibiData may use this information for internal reporting and diagnostics. You may disable this function following the instructions available in the documentation.
5. Representations and Warranties; Disclaimer. Each party represents and warrants that: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (iv) this Agreement is valid, binding and enforceable against it in accordance with its terms. You understand that WibiData Software may have defects or deficiencies, which WibiData is under no obligation to correct. WIBIDATA SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, FITNESS FOR USE OR PERFORMANCE OF WIBIDATA SOFTWARE. WIBIDATA AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO WIBIDATA AND/OR THE SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WIBIDATA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
6. Limitation of Liability. IN NO EVENT WILL WIBIDATA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 6 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7. Term and Termination; Effect of Termination. This Agreement will remain in effect, unless terminated by either party. Either party may terminate this Agreement for any reason or for no specific reason at any time upon written notice to the other party. Upon any expiration or termination of this Agreement all rights and licenses granted to you under this Agreement will immediately cease. The following Sections will survive any expiration or termination of this Agreement: 1 (solely the Restrictions), 2 (Feedback), 3 (Ownership), 4 (solely the Disclaimer), 6 (Limitation of Liability), 7 (this Section), and 8 (General Provisions). If you elect to use the WibiData Software following the Term or for any other purpose, you must enter into an additional license agreement.
8. General Provisions. This Agreement including all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by you, by operation of law or otherwise and any attempted transfer, assignment or delegation without such consent will be void and without effect. WibiData may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. WibiData may modify this Agreement by providing notice to you. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. WibiData may provide notice to you by posting such notice to the WibiData website through which you accepted this Agreement. Neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to Acts of God, government actions, war, civil disturbance, insurrection, sabotage, labor shortages or disputes, subcontractors, transportation difficulties or shortage of energy, raw materials or equipment. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. This Agreement is made and will be governed by and construed in accordance with the laws of the State of California, excluding its choice of law principles to the contrary. The parties agree that the venue for any dispute, obligation or action of any kind arising under this Agreement will be in the state or federal courts located in the County of San Francisco, California, and the parties irrevocably consent to the exclusive jurisdiction of the state and federal courts of the state of California for any dispute, obligation or action hereunder and agree not to commence or prosecute any suit, proceeding or claim hereunder, except in such courts. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.