WAVEMAKER COMMERCIAL LICENSE AGREEMENT
This WaveMaker Commercial License Agreement (this “Agreement”) is a legal agreement between WaveMaker Software, Inc., a Delaware Corporation (“Licensor”), and you (“Licensee”), with respect to the provision of the Licensed Materials (as defined below) by Licensor to Licensee for commercial use by Licensee. Accordingly, Licensor and Licensee agree as follows:
1. License Grant
1.1 License Grant Procedure and Terms. Licensee agrees to contact Licensor prior to any use of Licensor’s Software (as defined below) in accordance with the terms of this Agreement. Licensor shall provide Licensee with a schedule (the “Purchase Schedule”) showing Licensor’s then-current pricing for Licensee’s desired number of servers and desired time period, limitations on use, and documentation provided with respect to the Software that Licensee desires to license. By executing this Agreement, Licensee agrees to be bound by the terms and conditions of the Purchase Schedule in addition to the terms and conditions of this Agreement. In the event of a conflict between the Purchase Schedule and this Agreement, this Agreement shall govern.
1.2 Licensed Materials. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to use (a) the software described in the Purchase Schedule in machine-readable format only (the “Software”), solely for internal use and solely for use in accordance with the use restrictions set forth in the Purchase Schedule for the number of servers and for the time period set forth in the Purchase Schedule; and (b) any documentation, training materials or other materials listed or described on the Purchase Schedule (the “Other Licensor Materials”) solely for use with the Software. The Software and Other Licensor Materials are collectively referred to in this Agreement as the “Licensed Materials”. Licensee acknowledges and agrees that it is licensing the Licensed Materials for deployment in a production environment for the use of employees, customers or partners for the purpose of monetary gain, productivity improvement or commercial advantage (“Commercial Use”) and that any Commercial Use of the Licensed Materials shall be in accordance with the terms of this Agreement and the applicable Purchase Schedule.
2. Fees and Payments
2.1 License Fees. In consideration of the grant by Licensor to Licensee of the license to the Licensed Materials, Licensee shall pay to Licensor license fees at the times and in the amounts set forth in the relevant Purchase Schedule.
2.2 Payment Terms. Any payments due under this Agreement, including under any Purchase Schedule, shall be made in United States currency only. Licensee shall pay the amount invoiced by Licensor within thirty calendar days of the invoice date without deduction of any kind.
2.3 Late Payment. Licensee shall pay a late fee of 1% per month (or, if less, the maximum rate allowed by applicable law) on any undisputed amount not paid when due.
2.4 Taxes, Duties and Import/Export Fees. The charges required to be paid under this Agreement, including under any Purchase Schedule, do not include any amount for taxes, duties or import/export fees. Licensee shall reimburse Licensor and hold Licensor harmless for all sales, use, VAT, excise, property, or other taxes or levies, duties or import/export fees which Licensor is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). This provision does not apply to Licensor’s income or franchise taxes.
3. Archival Copies. Subject to Section 9.3(c) of this Agreement, Licensee may make such number of backup copies of the Licensed Materials as is consistent with Licensee’s standard archive or backup policies and procedures. Licensee shall maintain a log of the number and location of all originals and copies of the Licensed Materials, and the relevant contacts at such locations. Licensor shall have access to such log upon request.
4. Ownership, Use Restrictions and Intellectual Property Protection
4.1 Ownership. Licensor shall own all right, title and interest in and to (a) the Licensed Materials, (b) any copies of any of the Licensed Materials, including without limitation copies made by Licensee, including translations, compilations, and partial copies, (c) Proprietary Information (as defined below) of Licensor, and (d) any patents, patent rights, copyrights, trade secrets, trade marks, trade names, service marks, designs or design marks or proprietary inventions, designs and information included within any of the items described in clauses (a) through (c) of this Section 4.1. All suggestions, solutions, improvements, corrections, and other contributions provided by Licensee regarding the Licensed Materials shall become the sole property of Licensor and Licensee hereby agrees to assign any such rights to Licensor.
4.2 Restrictions. Licensee shall not and shall not permit others to: (a) use the Licensed Materials for anything other than as specifically authorized in Section 1 above and the relevant Purchase Schedule, (b) disassemble, decompile, decipher or reverse engineer the Software or apply any procedure or process to the Software in order to ascertain, derive, or appropriate for any reason or purpose, the source code or source listings for the Software, any trade secret information, process, or other information contained in the Software, (c) modify or customize any Licensed Materials in any way or prepare any derivative work based upon any Licensed Materials, (d) distribute, transfer, lend, sell, lease, rent, sublicense, assign or otherwise transfer any Licensed Materials or portion thereof, or (e) authorize or permit any person or entity to do any of the foregoing.
4.3 Proprietary Markings. Licensee shall not remove, alter or obscure any of Licensor’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Licensor’s (or its licensors’) ownership from the Licensed Materials. Additionally, Licensee agrees to reproduce and include Licensor’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Materials, or on any portion of such copies, including without limitation reproduction of the copyright notice.
4.4 Evidence of Compliance; Right to Audit. Upon request of Licensor, Licensee shall promptly, and in any event within thirty calendar days, provide Licensor with any and all evidence reasonably necessary to confirm Licensee’s compliance with the provisions of this Agreement. Licensee shall allow a third party auditor retained by Licensor to enter its premises to verify Licensee’s compliance with the provisions of the Agreement upon five business days’ prior written notice. If Licensee is found to owe fees greater than ten percent of the value of all relevant Purchase Schedules, Licensee shall pay the reasonable expenses incurred by Licensor associated with such inspection and shall promptly take measures to come into compliance.
4.5 Third-Party and Open Source Components. Licensee acknowledges that the Software contains certain third-party and open source components, and that such components are licensed separately under a variety of third-party and open source licenses which are incorporated in this Agreement by reference. Licensee agrees that no such third-party or open-source licenses shall increase the term of the license granted under this Agreement or change any of Licensor’s rights in and to the Licensed Materials.
5. Proprietary Information
5.1 Definition. As used in this Agreement, “Proprietary Information” means all information disclosed by Licensor to Licensee, before or after the date of this Agreement, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by Licensee to the extent that it contains, reflects, or is derived from Proprietary Information. Proprietary Information of Licensor includes, without limitation, the Licensed Materials. The terms and conditions of this Agreement are Proprietary Information; however, the existence of this Agreement is not Proprietary Information.
5.2 Protection of Proprietary Information. Licensee shall hold the Proprietary Information, including without limitation the Licensed Materials, in strict confidence. Except as expressly permitted in this Agreement, Proprietary Information may not be copied, reproduced, or distributed, and Licensee shall not sell, lease, license, assign, transfer, or disclose the Proprietary Information to any third party. Licensee shall protect Proprietary Information by using the same degree of care, but no less than a reasonable degree of care, as it uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, including, without limitation, securing all servers, drives or media on which the Software is installed or maintained. Licensee agrees to restrict access to Proprietary Information to only its employees who require such access in the course of their assigned duties and responsibilities and who have been informed of Licensee’s obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth in this Agreement. Licensee shall enforce all such obligations. In the event that any Proprietary Information is expressly required to be disclosed pursuant to any law, code or regulation, Licensee shall give Licensor immediate notice of such requirement and shall use its best efforts to seek or to cooperate with Licensor in seeking a protective order with respect to such Proprietary Information.
5.3 All Proprietary Information together with all copies of such Proprietary Information, including without limitation copies which Licensee has made, shall remain the property of Licensor. Upon request, Licensee shall either destroy or return, at the Licensor’s discretion, all Proprietary Information of Licensor and all copies of such Proprietary Information (including without limitation removing any Proprietary Information from Licensee’s servers, drives or media) and certify to Licensor in writing as to such return, destruction and removal.
6. WARRANTY DISCLAIMER. LICENSOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED MATERIALS, THE FUNCTIONAL CHARACTERISTICS OR PERFORMANCE OF THE LICENSED MATERIALS, OR THE PROFITABILITY OR OTHER BENEFITS TO BE OBTAINED BY LICENSEE FROM THE USE OF THE LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FROM A COURSE OF DEALING OR USAGE IN TRADE, REGARDLESS OF ANY COURSE OF DEALING, PROMOTIONAL LITERATURE OR OTHER ACTIONS WHICH MAY GIVE AN IMPRESSION OF CREATING A WARRANTY.
7. Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless Licensor from any claim relating to any breach by Licensee of any provision of this Agreement.
8. LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO ANY PARTY (INCLUDING LICENSEE) FOR DAMAGES FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES AND CHARGES PAID BY LICENSEE (WITH RESPECT TO ANY RELEVANT PORTION OF A PARTICULAR PURCHASE SCHEDULE) TO LICENSOR UNDER THIS AGREEMENT DURING THE QUARTERLY PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES UNDER THIS AGREEMENT. LICENSOR SHALL NOT BE LIABLE TO ANY PARTY (INCLUDING LICENSEE) UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OR LOSS OF BUSINESS, DELAYS, LOSS OF DATA OR PROGRAMS, LOSS OF USE OF COMPUTER HARDWARE, OR LOSS OF GOODWILL, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. Term; Default, Expiration and Termination
9.1 License Term. The term of this Agreement shall commence on the date this Agreement is executed by both parties and shall expire at the end of the time period set forth in the relevant Purchase Schedule unless terminated in accordance with Section 9.2 below.
9.2 Termination. This Agreement may be terminated as follows: (a) at any time upon mutual written agreement of the parties; or (b) by either party (the “terminating party”) by written notice to the other party (the “terminated party”) if the terminated party (i) breaches a material obligation under this Agreement and such breach continues uncorrected for a period of thirty calendar days after notice in writing of such breach by the terminating party to the terminated party, or (ii) becomes insolvent or is adjudged as bankrupt, makes an assignment for the benefit of creditors, has a receiver appointed or files a petition of bankruptcy.
9.3 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, (a) all license rights granted under Section 1 of this Agreement (as supplemented by any Purchase Schedule) shall terminate immediately; (b) Licensee shall pay any and all undisputed sums then owing to Licensor under this Agreement and all Purchase Schedules within ten business days from the date of termination or expiration; (c) Licensee shall either return to Licensor or destroy, at Licensor’s sole option, all Licensed Materials and Proprietary Information (including all copies thereof) then in its possession, custody or control (including without limitation removing all Licensed Materials and all copies of such Licensed Materials from Licensee’s servers, drives or media) and certify to Licensor in writing as to such return, destruction and removal; and (d) Licensee shall not be entitled to any refund of any payments made by Licensee.
9.4 Survival. The respective rights and obligations of Licensor and Licensee under the provisions of Sections 2, 4, 5, 6, 7, 8, 9 and 10 shall survive the expiration or termination of this Agreement.
10. Miscellaneous
10.1 Independent Contractor. Licensee and Licensor are and at all times shall be and remain independent contractors as to each other. At no time shall either party be deemed to be the agent or employee of the other party, and no joint venture, partnership, agency or other similar relationship shall be created or implied by virtue of this Agreement.
10.2 Severability. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such elimination.
10.3 Notices. Any notice or reports required or permitted to be given under this Agreement shall be given in writing and shall be delivered by personal delivery, facsimile transmission or by certified mail, postage prepaid, return receipt requested, and shall be deemed given upon personal delivery, five calendar days after deposit in the mail, or upon acknowledgment of receipt of facsimile transmission to the address for notice set forth in the Purchase Schedule. Either party may change its address for notice by providing notice of such address change in accordance with this Section 10.3.
10.4 Force Majeure. If the performance of this Agreement or any obligation under this Agreement (except payment of moneys due) is prevented, restricted or interfered with by reason of fire or other casualty or accident, strikes or labor disputes, war or other violence, any law, order proclamation, regulation, ordinance, demand or requirement of any governmental agency or intergovernmental body, other acts of God, or any other act or condition whatsoever beyond the reasonable control of the party charged with performance, such party, upon giving notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
10.5 Waiver. No waiver by either party of any term or condition of this Agreement or of any default or breach of any such term or condition, in any one or more instances, shall be deemed or construed to be a waiver of such term or condition, any other term or condition of this Agreement, or any subsequent default or breach of any such term or condition. No term or condition of this Agreement shall be considered waived, and no breach excused, by either party unless made in writing.
10.6 Choice of Law and Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without reference to conflicts of laws rules which would require application of another substantive law. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. All disputes arising out of or relating to this Agreement may only be brought in the state or federal courts located in San Francisco County, California, and the parties hereby agree and submit to the personal and exclusive jurisdiction and venue of these courts.
10.7 Export and Other Laws. Licensee agrees to comply with all export and re-export restrictions and regulations imposed by the government of the United States and any relevant foreign governments and shall not commit any act or omission which will result in a breach of such export restrictions. After delivery by Licensor to Licensee, the Licensed Materials shall not be exported until and unless Licensee has complied in all respects with all export and re-export restrictions of the United States and any relevant foreign governments. Licensee shall also comply with all other applicable domestic and international laws and regulations of the United States as they relate to the Licensed Materials and this Agreement.
10.8 Entire Agreement; Amendment. This Agreement, including any Purchase Schedules, contains the entire integrated agreement, and merges and supersedes all prior writings, negotiations or understandings, between the parties with respect to the subject matter of this Agreement. The provisions of this Agreement shall take precedence over any conflicting terms or conditions in any subsequent purchase order, documentation or collateral, including without limitation any conflicting terms and conditions in any Purchase Schedule. Only a written instrument signed by an authorized representative of each party that expressly amends this Agreement may amend this Agreement.
10.9 Government Restricted Rights. The Software and the Licensed Materials are provided with “RESTRICTED RIGHTS”. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the United States Government constitutes acknowledgement of WaveMaker’s proprietary rights in the Software. The contractor or manufacturer is WaveMaker, Inc., 301 Howard Street, Suite 2200, San Francisco, CA 94105.
10.10 Injunctive Relief; Attorneys’ Fees. Licensee acknowledges and agrees that Licensor will suffer irreparable damage, for which money damages would be inadequate, in the event of a breach by Licensee of any provisions of this Agreement, including without limitation any breach of Article 5 above. Licensee also acknowledges and agrees that Licensor shall be entitled to injunctive relief (without the necessity of posting a bond) in the event of any such breach in addition to all other remedies under this Agreement or available at law. In addition to any other relief awarded, the prevailing party in any action arising out of this Agreement at law or in equity (including without limitation any action for injunctive relief or any collection action) shall be entitled to its reasonable attorneys’ fees and costs, including without limitation all court costs, and experts’ fees paid or incurred in good faith.
10.11 Transfer and Assignment. This Agreement and the rights and obligations under it are not transferrable or assignable by Licensee without the prior express written approval of Licensor. Any attempt by Licensee to transfer or assign this Agreement without such approval shall be void. This Agreement shall inure to the benefit of the successors and assigns of Licensor.
10.12 Public Relations. Licensee agrees to allow Licensor to publicly announce and describe certain aspects of the relationship between the parties including but not limited to Licensee’s purchase and intended use cases, case studies and success stories. All public communication will be subject to Licensee’s review and written approval not to be unreasonably withheld.
10.13 Electronic Signatures. The parties agree that this Agreement may be executed electronically and that electronic copies of this Agreement shall be binding upon the parties to the same extent as manually-executed copies.
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