BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“LICENSEE”) AGREE TO THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. LICENSE GRANT. Subject to the terms of this Agreement, Wukix, Inc. (“Wukix”) hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to (i) use the application development platform provided by Wukix known as Mobile Common Lisp or Mocl (“Software”) to create and develop mobile applications (each, an “Application”), and (ii) distribute the applicable compiled run-time module components of the Software in binary code format solely as necessary to distribute the Application to end users, provided that distributions of the Software to end users are subject to license agreements that contain terms at least as protective of Wukix as this Agreement. Licensee may not use the Software to create software development products (e.g. software development kits or toolkits) and may not distribute the run-time module components of the Software in a manner that allows end users to create software development products.
2. LICENSE RESTRICTIONS. Except as expressly permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy (except for a reasonable number of backup copies), modify, or distribute the Software; (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 required by applicable local law, and then only to the extent so permitted); or (iii) rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software for any commercial purpose/on behalf of any third party. Licensee shall maintain and not remove or obscure any proprietary notices included with 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 Wukix and its licensors. Licensee understands that Wukix may modify or discontinue offering the Software at any time. The Software 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.
3. INTELLECTUAL PROPERTY; CONTENT. Licensee represents and warrants that (i) Licensee and the Application will not infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) Licensee and the Application will not violate any applicable law, statute, ordinance or regulation; (iii) the Application is not designed to be harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable laws; or (iv) Licensee will not disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Licensee, not Wukix, remains solely responsible for all data, information or content that Licensee creates, uploads, posts, e-mails, transmits, or otherwise disseminates using, or in connection with, the Software. Licensee acknowledges that Licensee’s use of the Software is at Licensee’s own risk and Licensee will be solely responsible for any damage to any party resulting therefrom.
4. BETA/EVALUATION USE. To the extent Wukix is providing the Software to Licensee for beta, trial or evaluative use, Wukix only grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the Software free of charge solely for testing purposes (and not for commercial development) for a period of ninety (90) days from the date of installation (“Evaluation Period”). Upon expiration of the Evaluation Period, the Software must be uninstalled and all copies destroyed.
5. FEES. Licensee shall pay Wukix the license fees for the Software as set forth on Wukix’s Web site or as otherwise agreed upon by the parties. All fees shall be non-refundable, and payable in US dollars on the date they come due. Licensee hereby authorizes Wukix to charge Licensee’s credit card for all fees, or agrees to pay Wukix via another method agreed upon by the parties in writing. Licensee represents and warrants that all payment information it provides to Wukix is complete and accurate. Licensee shall be responsible for all sales, use, value-added and other taxes, tariffs and duties of any type in connection with Licensee’s use of the Software, except for taxes on Wukix’s income.
6. CONFIDENTIALITY. All non-public information made available by Wukix or otherwise obtained by Licensee in connection with this Agreement will be considered “Confidential Information.” Confidential Information may include, without limitation, the source code of the Software and any information embodied within or derivable from the Software’s source code. All Confidential Information and any derivative thereof will be the property of Wukix, and no license, intellectual property rights or other rights to Confidential Information will belong to Licensee other than the rights expressly granted herein. Licensee may not disclose, publish, or disseminate the Confidential Information to any third parties, or use the Confidential Information for any reason other than as reasonably required for Licensee’s use of the Software as permitted by this Agreement. Licensee shall take all reasonable steps to prevent disclosure of Confidential Information. Licensee acknowledges and agrees that due to the unique nature of Wukix’s Confidential Information and Software, there can be no adequate remedy at law for any breach of Section 2 or Section 6 hereunder, which breach may result in irreparable harm to Wukix, and therefore, that upon any such breach or any threat thereof, Wukix shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law.
7. INDEMNITY. Licensee agrees that Wukix shall have no liability whatsoever for any Application or any use of the Software. Licensee shall indemnify and hold harmless Wukix from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from any Application or otherwise from Licensee’s use of the Software.
8. WARRANTY DISCLAIMER. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WUKIX PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL WUKIX OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE. WUKIX’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER OR $500, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF WUKIX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
10. TERM AND TERMINATION. This Agreement shall continue until terminated as set forth in this section. Licensee may terminate this Agreement at any time. Wukix may terminate this Agreement immediately if Licensee violates any provision of this Agreement. 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. Sections 2-3 and 5-12, and all accrued rights to payment, shall survive termination of this Agreement.
11. 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 downloading 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.
12. MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. 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 it enforceable. The failure of Wukix to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Wukix’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Wukix’s consent and any action or conduct in violation of the foregoing shall be void and without effect. This Agreement shall be governed by and construed under California law. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.