End User License Agreement | Wyebot

End User License Agreement

IMPORTANT NOTICE: This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity) (“you”) and Wyebot, Inc. (“Wyebot”). By downloading, installing, accessing or using the accompanying software (the “Software”) you will be bound by the terms of this Agreement. For the avoidance of doubt, the term “Software” does not include any third-party software, including any software that is subject to an open source license, as addressed in more detail in Section 3 below. If you do not agree to the terms of this Agreement, Wyebot is not willing to grant you any right to use or access the Software. In such event, you may not download, install, access, use or copy the Software. You represent that you are lawfully able to enter into contracts and are of the legal age of majority in the jurisdiction in which you reside (at least eighteen years of age in many countries). In addition, if this Agreement is being agreed to by a company or other legal entity, then the person agreeing to this Agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this Agreement.

1. Grant of License. During the term of this Agreement, Wyebot grants you a revocable, non transferable, non-sublicensable, nonexclusive license to use the object code version of the Software and any accompanying documentation. The term “Software” will include any updates, bug fixes, and versions (collectively, “Enhancements”) that Wyebot may, in its sole discretion, make available from time to time. The Software is licensed, not sold. Except for the limited license granted above, Wyebot and its licensors retain all right, title and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights. The Software can be used to collect Data (as defined below) from Wyebot-provided sensors and other equipment in its performance of services to you as set forth in an agreement between you and Wyebot. The Software can also be used to collect Data from equipment provided by you, subject to a license agreement between you and Wyebot for use of the Software.

“Data” means the following data and information based on how the Software is used:

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2. Restrictions. The license granted to you in this Agreement is restricted as follows:

  • Limitations on Copying and Distribution. You may not copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes set forth herein. You may make a single copy of the Software for backup and archival purposes.
  • Limitations on Reverse Engineering and Modification. Except to the extent expressly permitted by applicable law and only after consultation with Wyebot, you may not reverse engineer, decompile, disassemble, modify or create works derivative of the Software.
  • Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or, unless otherwise set forth in a license agreement between you and Wyebot, directly or indirectly permit any third party to use or copy the Software.
  • Proprietary Notices. You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Software or any accompanying documentation. You must reproduce the copyright and all other proprietary notices displayed on the Software and documentation on each permitted back-up or archival copy.
  • Use in Accordance with Documentation. All use of the Software must be in accordance with its then current documentation.
  • Compliance with Applicable Law. You will be solely responsible for ensuring your use of the Software is in compliance with all applicable foreign, federal, state and local laws, rules and regulations.

3. Third Party Software. To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with or incorporated into the Software, the terms of the applicable third party licenses (including the Apache License, Version 2.0) apply to the licensing of that Third Party Software and you will comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software. Nothing in this Agreement limits your rights under, nor grants you rights that supersede, the terms and conditions of the applicable license terms of the Third Party Software. Your use of the Software shall be deemed your acceptance of the terms and conditions of the third party licenses, including the Apache License, Version 2.0, a copy of which is available at http://www.apache.org/licenses/LICENSE-2.0. WYEBOT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE. ALL THIRD PARTY SOFTWARE IS PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND. IN NO EVENT WILL WYEBOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY SOFTWARE, EVEN IF WYEBOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

4. Term and Termination. This Agreement will commence on the earlier of the date you first download, install, access or use the Software (the “Effective Date”) and continue in effect until it is terminated (the “Term”) as provided in this Section. This Agreement will automatically terminate at the end of your subscription to use the Software as set forth in other documents between you and Wyebot (as applicable). Either party may terminate this Agreement on written notice to the other party if the other party is in material breach of its obligations hereunder and fails to cure the breach within thirty (30) days of such written notice. In addition, either party may, in its sole discretion, elect to terminate this Agreement on written notice to the other party upon the bankruptcy or insolvency of the other party or upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other party. Upon any termination or expiration of this Agreement, the license granted in Section 1 will automatically terminate and you will have no further right to possess or use the Software. On Wyebot’s request, you will provide Wyebot with a signed written statement confirming that the Software has been permanently removed from your systems.

5. Disclaimer. Wyebot shall not be liable for failures caused by third party hardware and software (including your own systems and any Third Party Software), misuse of the Software, or your negligence or willful misconduct. EXCEPT AS PROVIDED IN THIS SECTION, THE SOFTWARE, ANY THIRD PARTY SOFTWARE, AND ANY OTHER SERVICES ARE PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WYEBOT AND ITS SUPPLIERS AND VENDORS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, ANY THIRD PARTY SOFTWARE, AND OTHER SERVICES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. WYEBOT DOES NOT WARRANT THAT THE SOFTWARE, ANY THIRD PARTY SOFTWARE, OR OTHER SERVICES HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE OR ANY THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR ANY THIRD PARTY SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WYEBOT OR ANY OF ITS PERSONNEL OR AGENTS SHALL CREATE ANY ADDITIONAL WYEBOT WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF WYEBOT’S OBLIGATIONS HEREUNDER. THE SOFTWARE AND ANY THIRD PARTY SOFTWARE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT WYEBOT DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. WYEBOT SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

6. Representations and Warranties. If you are entering into this Agreement on behalf of a company or other legal entity, then the company or legal entity represents, warrants, and covenants that (i) it has obtained all necessary approvals from its employees and subcontractors (collectively, “End Users”) to install and use the Software (and any Third Party Software, as applicable) in accordance with this Agreement on all devices used by End Users; (ii) it has obtained all necessary consents from End Users to use the Software (and any Third Party Software, as applicable) to collect and process Data from End Users; and (iii) it will provide all legally required notices to End Users regarding use of the Software and any Third Party Software, including the collection and processing of Data.

7. Indemnity. You agree to indemnify, defend, and hold harmless Wyebot and its officers, directors, shareholders, agents, affiliates, and licensors from and against any and all third party claims of any kind (along with attorney’s fees and litigation costs) arising out of, resulting from, or in connection with your breach of this Agreement or your use or misuse of the Software or any Third Party Software, including any combination of the Software or any Third Party Software with any hardware, software, or other intellectual property not provided by Wyebot.

8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WYEBOT OR ITS LICENSORS, SUPPLIERS, AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, ANY THIRD PARTY SOFTWARE, OR OTHER SERVICES, EVEN IF WYEBOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE AGGREGATE LIABILITY OF WYEBOT AND ITS LICENSORS, SUPPLIERS, AND VENDORS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE INITIAL LICENSE FEE PAID BY YOU, IF ANY, FOR THE SOFTWARE.

9. Confidentiality. You acknowledge and agree that the Software and associated documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Wyebot. You may not use or disclose the Proprietary Information without Wyebot’s prior written consent, except disclosure to and subsequent uses by your employees and contractors who have a need- to-know, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement. You agree to use at least the same degree of care in protecting the Proprietary Information as you use to protect your own similar information, but in no event less than reasonable care. You acknowledge that due to the unique nature of the Proprietary Information, Wyebot will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information. In addition to any other remedies that may be available in law, in equity or otherwise, Wyebot shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure. You shall not use any information or data disclosed by Wyebot in connection with this Agreement to contest the validity of any Wyebot intellectual property. Any such use of Wyebot’s information and data shall constitute a material, non-curable breach of this Agreement.

10. Feedback. You may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Wyebot with respect to its products and services, including the Software. Feedback is voluntary and Wyebot is not required to hold it in confidence. Wyebot may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant Wyebot an irrevocable, non-exclusive, perpetual, world-wide, royalty-free license to use the Feedback in connection with Wyebot’s business, including enhancement of the Software, and the provision of products and services to Wyebot’s customers.

11. Governing Law. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in Boston, Massachusetts and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding.

12. General. This Agreement constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Wyebot to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 (Restrictions), 4 (Term and Termination), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Feedback), 11 (Governing Law), 12 (General), and 14 (U.S. Government Rights). Wyebot may assign any of its rights or obligations hereunder as it deems appropriate. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

13. Export. You may not export, directly or indirectly, the Software to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be your responsibility to comply with such export laws, rules and regulations. You will defend, indemnify, and hold harmless Wyebot from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Software was exported or otherwise shipped or transported in violation of applicable laws, rules and regulations.

14. U.S. Government Rights. The Software is commercial computer software as described in DFARS 252.227- 7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.

15. Electronic Acceptance. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and your acceptance will be deemed binding between the parties. Neither party may contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.