END-USER LICENSE AND MAINTENANCE AGREEMENT
This End-User License Agreement (“Agreement”) for the WOLFCOM® Evidence Management Software (“Software”) is entered into by and between WOLFCOM enterprises (“WOLFCOM”) with its place of business at 1700 Lincoln Avenue, Pasadena, CA 91103 and You (the “Customer”).
This Agreement governs the Customer’s use and maintenance of the WOLFCOM® Evidence Management Software (the “Software Product”), installed on or made available by WOLFCOM®. The term “Software Product” means computer software and may include associated media, printed materials and online or electronic documentation.
By downloading, installing, or otherwise using the Software Product, you agree to be bounded by the terms of this Agreement. The Software Product is licensed as a single product. Its component parts may not be separated for use on more than one computer. If you do not agree to the terms of this Agreement, do not install or use the Software Product.
SOFTWARE PRODUCT LICENSE
- Grant of License.
- License Grant. Subject to the terms of this Agreement and Customer’s payment of all applicable Subscription Fees and any Additional Fees, WOLFCOM hereby grants to Customer a non-exclusive, non-assignable, non-transferable, worldwide, royalty-free, limited-term license to install, execute, and use a single production instance of the Software for Customer’s internal business purposes during the applicable Subscription Term, in accordance with the Documentation, and only for the number of users paid for and authorized to use the Software and Services.
- WOLFCOM owns all right, title and interest in and to the Software, and any intellectual property rights associated with it. WOLFCOM reserves all rights in and to the Software that WOLFCOM does not expressly grant to Customer in this Agreement. Customer agrees not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Software to third parties; (ii) host the Software for the benefit of third parties; (iii) disclose or permit any third party to use the Software; (iv) try to avoid or change any license registration process WOLFCOM may implement; (v) modify or create derivative works of the Software, or merge the Software with other software; (vi) disassemble, decompile, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law or applicable license notwithstanding this prohibition; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; (viii) otherwise use or copy the Software in a manner not expressly permitted by this Agreement; or (ix) use the Software beyond the applicable Subscription Term. Customer agrees that the Software may transmit usage data to WOLFCOM, and Customer agrees to give WOLFCOM permission to use that data both for WOLFCOM’s internal analytics purposes and to monitor the ways Customer is using the Software.
- Additional Terms. The Software and/or Services may have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to the Software and/or Services, WOLFCOM will make them available to Customer in connection with providing the Software and/or Services.
Customer’s Use of the Software.
- Unless otherwise provided in the applicable Fee Schedule, (a) the Software and Services are purchased as end use, and (b) Users may be added during a Subscription Term at the same pricing as the underlying User subscription pricing.
- Customer’s Responsibilities. Customer will (a) be responsible for its compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and Services and notify WOLFCOM promptly of any such unauthorized access or use, (c) use the Software and Services only in accordance with this Agreement and Documentation and all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions, (d) WOLFCOM® is not liable for any data or file loss due to the customers’ hardware issues, (e) WOLFCOM is not responsible for managing or maintaining customer’s information technology infrastructure or computers/servers that host the Software Product, and (f) WOLFCOM is not accountable for any issues that are caused by customers’ data communication network or hardware failures.
- Customer will not (a) make the Software and/or Services available to, or use the Software and/or Services for the benefit of, anyone other than Customer or Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Software and/or Services, or include the Software and/or Services in a service bureau or outsourcing offering, (c) use the Software and/or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Software and/or Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Software and/or Services or any third-party data contained therein, (f) attempt to gain unauthorized access to the Software and/or Services or any related systems or networks, (g) permit direct or indirect access to or use of the Software and/or Services in a way that circumvents a contractual usage limit, (h) copy the Software and/or Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Software and/or Services, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (j) access the Software and/or Services in order to build a competitive product or service, or (k) reverse engineer, disassemble, or decompile the Software and/or Services.
Support and Maintenance Service.
Upon installation, Customer will receive annual support and maintenance. This entitles Customer to support, software maintenance and updates during the term of this Agreement.
- “Support” shall mean that WOLFCOM® shall provide to Customer reasonable telephone and email consultation relating to the operation of the Software.
- “Maintenance” shall mean that WOLFCOM® shall use best efforts to correct defects in the System within a reasonable period of time or to replace Customer’s copy of Software with another copy of Software at its discretion.
- During any periodic changes to the Software or documentation such as corrections, enhancements and releases of the Software or documentation made generally available to WOLFCOM’s Customers, the Updates shall be provided solely in accordance with this Agreement. WOLFCOM® shall have no obligation to revise or update the Software or to support any version of the Software other than the then-current version and the immediately previous version. New products or new versions of any products are considered upgrades. Upgrades are not included in this Agreement.
- Customer shall pay WOLFCOM® the agreed annual service maintenance on the first day of each yearly term of maintenance. The Fee is set forth in Exhibit A. If Customer fails to pay the Fees set forth in this Agreement, WOLFCOM® may at its discretion, (a) suspend the Support until such failure is corrected or (b) terminate the Agreement. If Customer fails to pay any fee, as applicable, such failure to pay shall be deemed a material breach of this Agreement, and if WOLFCOM® terminates the Agreement, Customer shall be responsible for all Fees or license fee, as applicable, that would have been paid during the remainder of the Term.
- Customer shall pay WOLFCOM® for services outside the scope of this Agreement on a time and material basis at WOLFCOM’s then-prevailing rates, and only with Customer’s prior written approval. Customer is responsible for the payment of any taxes assessed in connection with payments due under this Agreement except for any tax based solely on WOLFCOM® net income.
- Upon Customer’s prior written approval, Customer shall reimburse WOLFCOM® for any and all reasonable travel and living expenses incurred by WOLFCOM® in performing services under this Agreement. These expenses shall be billed to Customer, and Customer shall pay these billings within 45 days of the date such services were rendered.
- Upon termination of this Agreement, WOLFCOM® will be reimbursed for all reasonable costs and non-cancelable commitments incurred in the performance of the scope of work and for which the Customer has not yet paid.
- In the event that the Customer terminates its enrolment in the Agreement, Customer may reinstate its enrolment by accepting the then-current version of the Software and pre-paying the (a) back Fees since the date of termination to the date of reinstatement, subject to any increases, and (b) the next year’s Fee calculated at 20 percent of the then-current list price for Software License Fee.
- Waiver of Obligation. WOLFCOM® shall have no obligation to provide support, maintenance or updates for Software to Customer if (a) the Software was not used in accordance with WOLFCOM’s then-current published specifications, (b) the Software was altered, modified or converted by Customer without WOLFCOM’s prior written consent, (c) the equipment malfunctioned and the malfunction caused a defect in the Software, or (d) any other cause within the control of Customer caused a defect in the Software.
Term and Termination
- This Agreement is effective as of the Effective Date and will continue for the Subscription Term or until terminated as provided herein (“Subscription Term”). Upon expiration of the then-current Subscription Term, WOLFCOM will deliver to Customer an invoice for Subscription Fees for an additional one-year renewal Subscription Term. Customer may cancel its subscription by either providing written notice of non-renewal to WOLFCOM at any time during the Subscription Term or within 30 days after the invoice date, and this Agreement will automatically terminate at the end of the then-current Subscription Term. If Customer does not deliver such non-renewal notice to WOLFCOM, then the Subscription Term will automatically END. WOLFCOM reserves the right to change its prices by giving Customer written notice of such change in the invoice for the renewal Subscription Term and Customer will have 30 days to cancel its subscription before such change becomes effective for the renewal Subscription Term.
- Termination for Breach. Either party may immediately terminate this Agreement if the other party breaches any material term of this Agreement and, if such breach is capable of cure, the breaching party fails to cure such breach within 20 days of written notice thereof.
- Early Termination. Customer may terminate this Agreement with WOLFCOM prior to the end of the Subscription Term. If Customer plans to terminate this Agreement prior to the end of the Subscription Term, Customer must immediately notify WOLFCOM, in writing, of Customer’s decision to terminate. If Customer terminates this Agreement early pursuant to this Section 4.3, Customer is not entitled to any refunds, in whole or in part, for any Subscription Fees, Additional Fees, or any other fees or payments made to WOLFCOM prior to the effective date of Termination. For clarity, under no circumstances is WOLFCOM liable to Customer for any refunds in the event that Customer terminates this Agreement early, including but not limited to for any fees that were paid for previous years or fees prepaid for future services.
- Effect of Termination. Upon termination or expiration of this Agreement (a) the Subscription Term shall end; (b) all rights to use the Software and Services granted to Customer hereunder shall immediately terminate; and (c) WOLFCOM may disable Customer and User access to the Software and Services. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 1, 4.4, 4.5 (subject to the limitations set forth therein), 5, 6, 7, 8, 10 and 11.
- Raw Video upon Termination. Customer is solely responsible for downloading and maintaining Raw Video (defined below) for its own purposes, prior to the expiration or termination of this Agreement. WOLFCOM may, at its sole discretion, destroy all Raw Video associated with this Agreement upon the expiration or termination of this Agreement, and WOLFCOM shall not be responsible or liable for any Raw Video upon the expiration or termination of this Agreement. “Raw Video” means all raw video footage captured by Customer using the Software and/or Services, subject to the terms of this Agreement and any applicable Order Form. To the extent that any Raw Video is returned to Customer for any reason, at any time, such Raw Video does not include the meta data or tags associated with such Raw Video.
THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER USES THE SOFTWARE AND SERVICES ENTIRELY AT ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WOLFCOM AND ITS AFFILIATES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND SERVICES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WOLFCOM AND ITS AFFILIATES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES RELATED TO ACCURACY, COMPLETENESS, OR AVAILABILITY OF THE SOFTWARE, SERVICES OR USER DATA.
Limitation of Liability.
- No Consequential or Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WOLFCOM BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOST VIDEOS, DISTORTED VIDEOS, INCOMPLETE VIDEOS, LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WOLFCOM’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID AND PAYABLE BY CUSTOMER TO WOLFCOM DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
- Indemnification. Customer shall indemnify, defend, and hold harmless WOLFCOM, and its parent companies, subsidiaries, affiliates, stockholders, member, manager, officers, directors, employees, agents, and representatives from and against any and all claims, costs, proceedings, demands, losses, damages, liabilities and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to (a) Customer’s use of the Software and/or Services, (b) Customer’s breach of any representation, warranty, covenant, or obligation under this Agreement, or (c) Customer’s actual or alleged negligence or misconduct. Customer may not settle any indemnified claim against WOLFCOM unless the settlement unconditionally releases WOLFCOM of all liability. WOLFCOM may participate in the defense of any indemnified claim at its expense. WOLFCOM, at Customer’s expense, may undertake and control the defense of any indemnified claim in the event of the material failure of Customer to undertake and control the same.
- Confidentiality. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may share certain information of a confidential nature during the Subscription Term. “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, source code for the Software and Services; any other non-public source code of either party; and any non-public product, service, technical, marketing, business, financial, or other information. The Receiving Party agrees, for itself and any Affiliate, agents, and employees, that it will not publish, disclose, or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the confidentiality of the other party’s Confidential Information as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Without granting any right or license, the Disclosing Party agrees that the foregoing will not apply with respect to information that the Receiving Party can document (a) is in the public domain and is available at the time of disclosure or which thereafter enters the public domain and is available, through no improper action or inaction by the Receiving Party or any Affiliate, agent, or employee (provided, however, that an item of Confidential Information shall not be considered in the public domain due to the fact that the individual elements that comprise that item can be found in the public domain); (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party without violating any obligations to the Disclosing Party; (d) is independently developed by the Receiving Party without reference to such Confidential Information; or (e) is compelled to be disclosed pursuant to any statutory or regulatory authority, court order, or legal process, provided the Disclosing Party is given prompt notice of such requirement and the scope of such disclosure is limited to the extent possible.
- Marketing. WOLFCOM may reproduce and use Customer’s name and/or logo for the sole purpose of indicating the existence of a customer relationship between Customer and WOLFCOM. Any other use of Customer’s name or logo will require Customer’s prior written consent.
- Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Los Angeles, California and the parties irrevocably consent to personal jurisdiction and venue therein.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.
- All notices provided hereunder will be in writing, delivered personally, by e-mail or sent by overnight courier, registered or certified mail to the addresses specified in the Order Form or such other address as may be specified in writing by notice given in accordance with this Section 14.3. All such notices will be deemed to have been given: (a) upon receipt when delivered personally; (b) upon receipt when delivered by e-mail; or (c) in the case of overnight courier, one weekday after delivery to the overnight courier.
- Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.
- Independent Contractors. WOLFCOM and Customer are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between WOLFCOM and Customer.
- This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed an original, and all of which together will constitute one and the same agreement. Facsimile and electronic (e.g., PDF) signatures shall be as effective as original signatures. This Agreement shall be effective only after it has been duly executed by both parties.
- Amendments; Entire Agreement. No modification, change, or amendment of this Agreement shall be binding upon the parties, except by mutual express consent in writing of subsequent date duly signed by the authorized representatives of each of the parties. This Agreement, including properly incorporated Order Form(s), constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.