TERMS OF SERVICE & SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this “Agreement”) is a binding agreement between you (the “Licensee”), 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 LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT (I) LICENSEE IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; OR (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE OR ITS AUTHORIZED USERS AND LICENSEE AND/OR ITS AUTHORIZED USERS MUST NOT DOWNLOAD/INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’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 LICENSEE 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 to access and use the Software through Licensee’s account under the this Agreement.
“Authorized User Location” means the physical address designated by Licensee where one or more Authorized Users are located.
“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.
“Licensee” has the meaning set forth in the preamble.
“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 Licensee, Authorized User or Licensor. “Update” means any revision, modification or improvement to the Software.
“Customer Data” means any information entered into the Software by the Licensee or its’ Authorized Users in use of the Software; including but not limited to information about Licensee’s customers, devices, staff, time sheets, catalog, inventory, sales, repairs, invoices, payments, and/or settings.
2. License Grant and Scope. Licensor hereby grants to Licensee a limited, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable right and license throughout the world during the Term to:
(a) 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 Licensee is subject to the following restrictions:
(a) Licensee 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 Licensee, (ii) over 50% of the voting control of Licensee, 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 Licensee.
(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 Licensee 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 Licensee:
(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) Licensee shall not, directly or indirectly:
(i) with the exception of its Authorized Users, provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, 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 Licensee;
(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, 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) The Initial Term shall be for one year, commencing on the date Licensee agrees to pay for the Software by completing the registration form. (the “Initial Term”) Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of one year, (the “Renewal Period”) at Licensor’s then current fees. Either party may terminate this Agreement, by notifying the other party in writing at least 30 days prior to the end of the initial term or the then current renewal period.
(b) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee or any of Licensee’s Authorized Users, materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.
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￼(c) Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
(d) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee and its Authorized Users shall cease using and destroy all copies of the Software and Documentation.
(e) In the event of any termination of this Agreement, all obligations and responsibilities of each Party under Sections 5 through 13 shall survive and continue in effect and shall injure to the benefit of and be binding upon the Parties and their legal representatives, heirs, successors, and assigns. The termination provision of this Agreement shall not excuse a prior breach of that provision.
5. Charges and Payment of Fees. Charges are monthly. Licensee shall pay all fees or charges to Licensee’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments for the service must be made monthly in 15 days from receiving the Invoice electronically. Payments are arranged through Licensor’s subscription billing system or by check. All payment obligations are non-cancelable and all amounts paid are non-refundable. Licensee is responsible for paying for all Authorized User Locations and Authorized Users allocated to Licensee’s account. Licensor reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Licensee, which notice may be provided by e-mail. All pricing terms are confidential, and Licensee agrees not to disclose them to any third party. Implementation advisory, support and training fees are subject to separate negotiation and are paid upon delivery.
6. Billing and Renewal. Licensor charges and collects monthly for use of the Software. Licensor will deliver an email receipt for each month upon receipt of payment. Fees for other services will be charged on an as-quoted basis. Licensor’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties. Licensee agrees to provide Licensor with complete and accurate billing and contact information. This information includes Licensee’s legal company name, street address, and e-mail address.
7. Non-Payment and Suspension. In addition to any other rights granted to Licensee herein, Licensor reserves the right to suspend or terminate this Agreement and Licensee’s access to the Software if Licensee’s account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If Licensee or Licensor initiates termination of this Agreement, Licensee will be obligated to pay the balance due on Licensee’s account computed in accordance with the Charges and Payment of Fees section above.
Licensor reserves the right to impose a reconnection fee in the event Licensee’s account is suspended and thereafter request access to the Software. Licensee agrees and acknowledges that Licensor has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Licensee’s account is 30 days or more delinquent.
8. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software through access thereto provided by Licensor, including uses by Licensee’s Authorized Users, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software by any Person to whom Licensee 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.
9. Collection and Use of Information.
￼(a) Licensee 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) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or its Authorized Users or on Licensee’s or Authorized User’s equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee’s and/or its 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.
10. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee 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 Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee 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.
11. Warranty Disclaimer; Limitation of Liability.
(a) THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO Licensee “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 Licensee’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 Licensee 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 Licensee’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. 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 Licensee or any of its Authorized Users are the US Government or any contractor therefor, Licensee and/or its Authorized Users 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 Licensee 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
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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, PO Box 700804, Tulsa, OK 74170, Attn: Jeff Foster. Communications to the Licensee will be sent to the Licensee using the Licensee’s address.
(d) This Agreement constitutes the sole and entire agreement between Licensee 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) Licensee 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 Licensee’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 (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (iii) to Sections refer to the Sections of this Agreement;
(iv) 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
(v) 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.