AUTHORIZED USER LICENSE AGREEMENT
This Authorized User License Agreement (this “Agreement”) is a binding agreement between you (the “Authorized User”), and BRICKWIRE, LLC (the “Licensor”).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT AUTHORIZED USER ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE “ACCEPT DEMO LICENSE AGREEMENT” CHECKBOX, AUTHORIZED USER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT AUTHORIZED USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT AUTHORIZED USER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT. IF AUTHORIZED USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO AUTHORIZED USER AND AUTHORIZED USER MUST NOT DOWNLOAD/INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR AUTHORIZED USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT AUTHORIZED USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Users” means the all persons authorized by Licensee and/or Licensee’s affiliates to access and use the Software through Licensee’s account under the RepairQ Software Services Agreement, and who have agreed to the terms of this Agreement.
“Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
“Licensor” has the meaning set forth in the preamble.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the current version of the RepairQTM software.
“Term” has the meaning set forth in Section 4(a).
“Third Party” means any Person other than Authorized User or Licensor.
“Update” means any revision, modification or improvement to the Software.
2. License Grant and Scope. Provider hereby grants to Authorized User a limited, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable right and license throughout the world during the Term to:
access and use the Software,
(b) generate, print, copy, upload, download, store and otherwise Process all graphical user interface, audio, visual, digital and other output, displays and other content as may result from any access to or use of the Software, and
(c) prepare, produce, print, download and use a reasonable number of copies of the Documentation for use in connection with the Software under this Agreement.
3. Restrictions. The license granted to Authorized User is subject to the following restrictions:
(a) Authorized User shall not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software available to any Third Party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service. For this purpose, a “transfer” of the Software shall be deemed to occur upon the transfer to any Person not an Affiliate of the transferring party of (i) all or substantially all of the assets of Authorized User, (ii) over 50% of the voting control of Authorized User, or (iii) any other transaction, by way of merger or otherwise, that results in a transfer of all or substantially all of the assets or a change of voting control of Authorized User
(b) This Agreement is expressly made subject to any United States government and other applicable Laws regarding export from the United States of computer software or technical data, or derivatives thereof, and Authorized User shall not allow the Software, in whole or in part, to be exported outside the United States in any manner or by any means.
(c) All copies of the Software and/or the Documentation made by the Authorized User:
(i) will be the exclusive property of the Licensor;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent and other intellectual property rights notices contained in the original
(d) Authorized User shall not, directly or indirectly:
(i) provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Authorized User, with access to or use of the Software or Documentation, other than on a “read-only” basis to Persons who owe a duty of confidentiality to Authorized User;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(iii) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs, other than programs furnished by or expressly approved by Licensor;
(iv) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation, including any copy thereof;
(vi) except as expressly set forth this Agreement, copy the Software or Documentation, in whole or in part;
(vii) use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
(A) power generation systems;
(B) aircraft navigation or communication systems, air traffic control systems or any other transport management systems;
(C) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and
(D) military or aerospace applications, weapons systems or environments;
(viii) use the Software in violation of any federal, state or local law, regulation or rule; or
(ix) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.
4. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for thirty (30) days (the “Term”).
(b) Authorized User may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
(c) Licensor may terminate this Agreement, effective immediately, for any reason and at its’ sole discretion.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Authorized User shall cease using and destroy all copies of the Software and Documentation.
5. Responsibility for Use of Software. Authorized User is responsible and liable for all uses of the Software through access thereto provided by Licensor, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Authorized User is responsible and liable for all actions and failures to take required actions with respect to the Software by any Person to whom Authorized User or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
6. Maintenance and Support. Maintenance and support will be provided pursuant to the RepairQ Software Services Agreement by and between Licensor and Licensee.
7. Collection and Use of Information.
(a) Authorized User acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services.
(b) Authorized User agrees that the Licensor may use such information for any purpose related to any use of the Software by Authorized User or on Authorized User’s equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Authorized User’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all intellectual property rights in and to the Software.
8. Intellectual Property Rights. Authorized User acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Authorized User. Authorized User does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Authorized User in this Agreement. Authorized User shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Authorized User shall promptly notify Licensor if Authorized User becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
9. Warranty Disclaimer; Limitation of Liability.
(a) THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO AUTHORIZED USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE AUTHORIZED USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(b) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(i) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE AUTHORIZED USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(ii) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THE REPAIRQ SOFTWARE SERVICES AGREEMENT.
(iii) THE LIMITATIONS SET FORTH IN SECTION 9(b)(i) AND SECTION 9(b)(ii) SHALL APPLY EVEN IF THE AUTHORIZED USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
10. U..S. Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Authorized User is the US Government or any contractor therefor, Authorized User shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule (whether of the State of Oklahoma or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Oklahoma. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Oklahoma in each case located in the city of Tulsa and County of Tulsa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
(b) Licensor shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Authorized User equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.
(c) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Communications to the Licensor must be sent to Brickwire, LLC, 320 S. Boston Ave., Suite 1130, Tulsa, OK 74103, Attn: Jeff Foster. Communications to the Authorized User will be sent to the address set forth in the Licensor’s records.
(d) This Agreement constitutes the sole and entire agreement between Authorized User and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(e) Authorized User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. Any purported assignment, delegation or transfer in violation of this Section 11(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Authorized User’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(h) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (iv) to Sections refer to the Sections of this Agreement; (v) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (vi) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(j) The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.