** IMPORTANT **
READ THESE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THIS SOFTWARE. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS 30-DAY TRIAL PERIOD END USER LICENSE AGREEMENT (“AGREEMENT”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT DOWNLOAD OR INSTALL THIS SOFTWARE.
This Agreement is by and between WitFoo, Inc., a Delaware limited liability company (“Licensor” or “WitFoo“) and the customer, individual or entity (“Licensee”) accessing the Software for this 30-Day Trial Period.
- DEFINITIONS.
“Documentation” means the explanatory materials published and generally available in print, electronic or online for Licensee delivered with the Software, including online help, and as updated from time to time.
“Software” means only the WitFoo software (WitFoo Precinct (inclusive of Detective, Lieutenant, Patrolman and Library) and/or WitFoo Evidence Locker) and/or code, Upgrades, Updates, and Documentation accessible to Licensee.
- SOFTWARE LICENSE GRANT AND PROPERTY RIGHTS.
Subject to the terms of this Agreement, Licensor hereby grants Licensee a limited, revocable (automatically upon thirty (30) days from acceptance of this Agreement), non-sublicensable, non-transferable, non-exclusive license to use the Software as set forth herein only for Licensee’s internal evaluation for business use during and only in accordance with the Agreement.
The Software, whether or not provided to Licensee, is strictly confidential to Licensor. WitFoo exclusively owns and reserves all rights, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software license granted in this Agreement. This Agreement is only for a 30-day trial period and is not an agreement of sale, and no title, intellectual property rights, trademark(s), patent(s), pending applications, or ownership rights to the Software are transferred pursuant to this Agreement. Licensee acknowledges and agrees that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of WitFoo, and have great commercial value to WitFoo. Licensee may provide feedback (which may be oral or written) to Licensor on the functions, operation, and utility of the Software and encouraged to provide prompt reports of any issues, bugs or service errors (collectively “Feedback”). Licensee agrees that any Feedback provided (including, without limitation, feature suggestions and corrections to problems in the Software and/or documentation) becomes the property of Licensor and that Licensor may use or exploit the same without any accounting or any payment to Licensee.
- LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software or any part thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) rent, lend, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software on behalf of any third party; (iv) use the Software for performing comparisons or other “benchmarking” activities; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; either alone or in connection with any software (and Licensee will not publish or disclose any such performance information or comparisons); or (v) use the Software in contravention to any applicable laws or government regulations. Licensee shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Licensor and its suppliers or licensors. Licensee understands that Licensor may modify or discontinue offering the Software at any time. The Software and documentation is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give Licensee any rights not expressly granted herein.
- LIMITATION OF LIABILITY. FOR ALL EVENTS AND CIRCUMSTANCES, LICENSOR’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT TO EXCEED THE AMOUNT
- DISCLAIMER OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; LICENSOR WILL ALSO NOT BE LIABLE TO LICENSEE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LICENSOR’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THAT LICENSEE PAID ($0.00) TO LICENSOR UNDER THIS AGREEMENT.
SOME STATE LAWS DO NOT ALLOW CERTAIN LIMITATIONS AND DISCLAIMERS OF DAMAGES. IF THESE LAWS APPLY TO LICENSEE, IT MAY HAVE ADDITIONAL RIGHTS.
- WARRANTY. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, OR BE ERROR FREE OR THAT LICENSOR WILL CORRECT ALL SOFTWARE ERRORS. LICENSEE agrees that it is solely responsible for its use and evaluation of the Software.
- Licensor will defend and hold harmless at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that the Software infringes any known U.S. patents or copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret Law, so long as Licensee: (a) promptly notifies Licensor in writing after learning of the suit or claim; (b) gives Licensor the authority to defend or settle the suit or claim (provided that Licensor does not agree to any settlement that requires you to pay money or make any admissions); and (c) gives Licensor all available non-privileged information and assistance reasonably requested by Licensor concerning the suit or claim. Licensor shall have no obligation pursuant to this Section if the infringement is caused by (i) the modification of the Software other than by Licensor; or (ii) the combination of the Software with other software not provided by Licensor; or (iii) the use of other than the most current version of the Software, if the current version would be non-infringing and has been made available to the Licensee. If the unmodified Software becomes, or in Licensor’s opinion is likely to become, the subject of a claim of infringement or misappropriation, Licensor may, at its option and expense, use its reasonable efforts to (i) modify or replace the Software to be non-infringing while giving equivalent performance and functionality, or (ii) obtain for the Licensee the right to continue using the Software. If it is not reasonably practicable to perform either of the above options, then Licensor may terminate this Agreement with respect to the infringing Software and refund to Licensee the License fees paid by Licensee less a prorated amount for Licensee’s use.
Licensee shall indemnify and hold harmless Licensor from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee’s misuse of the Software as well as from Licensee’s failure to comply with any term of this Agreement. The foregoing states Licensor’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, by the Software.
- TERM AND TERMINATION. The Term of this Agreement shall take effect immediately on the date Licensee accepts this Agreement (“Effective Date”) and will continue for a period of thirty (30) days (“Trial Period”), and automatically terminate at the end of the Trial Period. Parties may terminate this Agreement at any time. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software.
- Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material of the other party that relates to past, present or future Software(s), software (including Source Code and Object Code), research development, inventions, processes, techniques, designs or technical information and data, and marketing plans (the “Confidential Information”). Each party agrees to preserve and protect the confidentiality of the Confidential Information, pricing, and all physical forms, whether disclosed to the other party before this Agreement is signed or afterward. Licensee accepts responsibility for the actions of its agents or employees and shall protect Licensor’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. In addition, a party will not disclose or disseminate the Confidential Information for its own benefit or for the benefit or any third party unless otherwise provided in this Agreement. The foregoing obligations do not apply to any information that (1) is publicly known; (2) is given to a party by a third party who is not obligated to maintain confidentiality; or (3) a party had already lawfully developed prior to the day this Agreement is signed, as evidenced by documents, unless otherwise provided herein. The Licensee may disclose Confidential Information pursuant to court order from a court of competent jurisdiction provided that it immediately gives the Licensor written notice to permit the Licensor time to contest such disclosure, and such disclosure is otherwise limited to the required disclosure. Neither party will take or cause to be taken any physical forms of Confidential Information (nor make copies of same) without the other party’s written permission. Licensee shall promptly notify the Licensor upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the Licensor in enforcing its rights. Despite any other provisions of this Agreement, the requirements of this Section will survive termination of this Agreement. Licensee agrees to share non-identifiable statistics and appliance metrics automatically with Licensor.
- GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement (“DFAR”) as applied to military agencies. The Software is a “commercial item,” “commercial computer Software” and “commercial computer Software documentation” pursuant to DFAR. In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement unless otherwise mutually agreed to in writing.
- EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By installing or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
- This Agreement represents the entire agreement concerning the Software between the parties, to the exclusion of any pre-printed or contrary terms of any Licensee purchase order (or similar document), and supersedes all prior agreements and representations. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the Agreement enforceable. The failure of Licensor to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor’s rights with respect to such breach or any subsequent breaches. This Agreement will bind and inure to the benefit of permitted successors and assigns. Licensor may assign this Agreement, in whole or in part, without the Licensee’s prior written consent. Any attempt to assign this Agreement other than in accordance with this provision shall be void. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflicts of law provisions. Unless waived by Licensor in a particular instance, the sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Georgia and each party hereby consents to the jurisdiction of such courts for any such dispute. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
This Agreement shall be binding on Licensee upon clicking “I accept the 30-Day Trial Period End User License Agreement” checkbox. By clicking and accessing Software, you agree to be bound to the terms and conditions contained within this Agreement, and to use Software only as permitted by the express terms of this Agreement.
I ACCEPT THE 30-DAY TRIAL PERIOD END USER LICENSE AGREEMENT