1. Definitionsa) "Access" means to connect to the Software either directly or indirectly through any network including the internet.
b) "Add-ons" mean separate components and / or subscription packages, which work in conjunction with the Software to provide additional or enhanced functionality or usage. Add-ons include, but are not limited to, modules, number of users, specific features, plug-ins, macros, extensions and libraries.
c) "Content" means any data, information or material submitted by Licensee for use of the Software or for processing through the Software.
d) "Documentation" means all documentation, technical manuals, functional manuals, operator and user guides and manuals, flow diagrams, file descriptions and other written information describing the functions, operational characteristics and specifications of the Software or other technology, or explaining how to install, use, maintain or support the Software or other technology.
e) "Initial Term" means the fixed initial period of time (starting from the Effective Date) in which Licensee pays to Licensor the License Fees to use the Software.
f) "Renewal Term" means the additional period of time for which the term of this agreement will be extended automatically upon expiration of the Initial Term or the then current term.
g) "Licensee" means any customer that obtains or may obtain one or more licenses for the use of the Software in accordance with this End User License Agreement.
h) "License Fees" means the license fee(s) payable by Licensee pursuant to Section 5 of this agreement.
i) "Licensor" means and refers to WeLink Inc.
j) "Server Environment" is defined as any server system, licensed from Licensor or any other entity, that consists of one or more server software processes, operating independently or otherwise, including but not limited to ASP .NET, Java servers, Citrix servers, report servers, web servers, database servers, terminal servers, mail servers, application servers or transaction servers, facilitated by an internet, intranet, extranet, client/server network, wide-area network or any other multi-user network.
k) "Services" means maintenance and support Services, consulting and training provided by Licensor to Licensee.
l) "Sign-up" means the process of selection of a suitable subscription plan by Licensee and subscribing to WeLink.
m) "Software" means the software referenced in Schedule A supplied by Licensor herewith, and corresponding documentation, associated media, printed materials and online or electronic documentation. Any updates to such Software, which Licensee is entitled to receive and that has been provided to Licensee by Licensor, shall also mean Software for purposes of this Agreement.
n) "Software as a Service (WeLink)" means and refers to the use of the Software and related Services offered to Licensee by Licensor to use the Software while it is installed on a Server Environment which is hosted by or on behalf of Licensor.
o) "Subscription plans" means the plans including, but not limited to, various usage, modules, features and subscription terms offered by Licensor to Licensee at the time of Sign-up and / or renewal to avail WeLink.
p) "Term" means the Initial Term together with all Renewal Terms.
q) "Use" means to load, execute, employ, utilize, store or display the Software.
2. Software LicenseIn accordance with the terms herein, Licensor grants to Licensee, and Licensee accepts from Licensor, a non-exclusive, non-transferable, worldwide right to use welink.com, solely for Licensee's business or personal purposes, to use the current version of Licensor's Software. This license allows Licensee to use the Software installed on a Server Environment, which is hosted by or on behalf of Licensor upon payment of an appropriate License Fee. Licensor reserves the right to change the Server Environment from time to time as it may deem fit. The Software shall be used for the processing of Licensee's own business, which may include servicing and maintaining records on behalf of its customers and clients.
Licensee shall have following options under this agreement:
a) to purchase other licenses and/or add-ons in the future at any time during the term of this EULA by paying appropriate License Fee as decided by Licensor; and
b) to reduce the number of licenses and/or add-ons already purchased by Licensee from Licensor in the future at any time during the term of this EULA. In case Licensee unsubscribes before completion of the then current term, Licensor shall not be obligated to refund the unused amount of License Fees to Licensee. However, Licensee shall not be charged for the unsubscribed licenses and/or add-ons in the following term.
3. Term of AgreementThis Agreement shall be effective for the Initial Term and shall automatically renew and continue in effect thereafter for each Renewal Term (collectively "the Term") as set forth in Schedule C unless either Licensor or Licensee terminates this agreement pursuant to Section 15 of this agreement.
4. RestrictionsThe Software contains copyrighted material, trade secrets and other proprietary material. Licensee shall not:
(a) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Software;
(b) send, process or store infringing, obscene, threatening, libelous or otherwise unlawful or tortuous material, including material violating of third party rights;
(c) send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs;
(d) interfere with or disrupt the integrity or performance of WeLink; (e) attempt to gain unauthorized access to WeLink or its related systems or networks; (f) merge the Software with any other software or documentation; (g) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Software; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP rights and/or Licensor's rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Software or on any copies made in accordance with this Agreement;
(i) use, or authorize or permit the use of, the Software except as expressly permitted herein (j) use the Software to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous or defamatory, nor to perform any activity which breaches the rights of any third party.
5. Price and PaymentDuring the Initial Term, as consideration for the license to use the Software granted to Licensee herein, Licensee shall pay to Licensor the License Fees pursuant to the fees and payment terms provided by the Licensor.
Licensor is entitled to revise the amount of the License Fees for respective Renewal Term. Such revision in the License Fees shall, from time to time, be updated and it may be published on Licensor's official website (the "Site") or communicated to the Licensee by the Licensor. At the time of renewal of the agreement by Licensee, such revisions will be reflected on the Site; however, in case of automatic renewal it is Licensee's sole responsibility to visit the Site or contact Licensor to check the revisions made to the License Fess payable to Licensor. If the updated pricing is not posted on Licensor's official website than Licensor can update the Licensee of any price change via written notification which may be in the form of email or other written communication.
6. Software OwnershipLicensor represents that it is the owner of the Software and that it has the right to modify same and to grant Licensee a license for its use.
7. Intent to CooperateBoth Licensor and Licensee acknowledge that successful use of the Software pursuant to this License Agreement shall require their full and mutual good faith cooperation, and Licensee acknowledges that it shall abide by the terms of this Agreement.
8. Consulting ServicesLicensor may on its own or through its affiliates or any third party provide consulting services as required as per the terms and costs mutually agreed upon between Licensor and Licensee from time to time.
9. Title to Software and ConfidentialityAll information, data, drawings, specifications, documentation, software listings, source or object code which Licensor may have imparted and may from time to time impart to Licensee relating to the Software is proprietary and confidential and title thereto remains in Licensor. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Licensee's request are and shall remain with Licensor. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others. Licensee agrees to secure and protect each module, software product, documentation and copies thereof in a manner consistent with the maintenance of Licensor's rights therein and to take appropriate action by instruction or Agreement with its employees or consultants or others who are permitted access to each program or software product to satisfy its obligations hereunder. All copies made by Licensee of the Software and other programs developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the property of Licensor. Violation of any provision of this paragraph shall be the basis for immediate termination of this EULA.
10. AcceptanceThe Software shall be deemed to have been accepted when Licensee is able to successfully access the Software online or while it is installed on a Server Environment after Sign-up.
11. Use and TrainingLicensee shall limit the use of the Software to its employees and/or designates who have been appropriately trained. Licensor shall make training for the Software available to Licensee as required pursuant to its standard training procedures. Licensor may on its own or through its affiliates or any third party provide appropriate training as required and/or as per the terms, location and costs mutually agreed upon between Licensor and Licensee from time to time.
12. Warrantya) Licensor warrants that Software will conform, as to all substantial operational features, to Licensor's current published specifications upon Sign-up.
b) Licensee must notify Licensor in writing, within Thirty (30) days of Sign-up (not including delivery of any subsequent modifications to the Software), of its claim of any defect in the Software. If the Software is found defective by Licensor, Licensor's sole obligation under this warranty is to remedy such defect in a manner consistent with Licensor's regular business practices.
c) LICENSOR DOES NOT WARRANT THAT:
(A) THE OPERATION OF THE SOFTWARE OR HARDWARE OR NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE OR NETWORK THAT MAY BE SELECTED FOR USE BY LICENSEE;
(B) THE SOFTWARE WILL BE FREE OF VIRUS, TROJANS OR OTHER SUCH HARMFUL OR MALICIOUS CONTENT;
(C) THE SOFTWARE IS INCAPABLE OF BEING HIJACKED;
(D) THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS; OR
(E) ANY RESULTS, OUTPUT OR DATA PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE.
d) If any modifications are made to the Software by Licensee during the warranty period, this warranty shall immediately be terminated. Correction for difficulties or defects traceable to Licensee's errors or systems changes shall be billed at Licensor's standard time and material charges.
e) Licensee agrees that Licensor's liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed the then current License Fees or License Fees payable by Licensee for two (2) months, whichever is less. f) Licensor shall disclaim all warranties provided to Licensee under this Agreement after three (3) months from the date of Sign-up.
g) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 12, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES PROVIDED TO LICENSEE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
13. Limitation of Liabilitya) Licensor shall not be responsible for any activity occurring in connection with Licensee's use of WeLink, and Licensee shall abide by all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, international communications and the transmission of technical or personal data. Licensee shall notify Licensor immediately of any other known or suspected breach of security.
b) LICENSEE AGREES THAT WeLink MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS CAUSED DUE TO INHERENT NATURE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR TRANSFER OF SERVER ENVIRONMENT OR OTHER SOFTWARE OR NETWORK OR HARDWARE OR INFRASTRUCTURE ISSUES AND LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
c) LICENSOR DOES NOT OWN ANY CONTENT THAT YOU SUBMIT TO WeLink. LICENSEE, NOT LICENSOR, SHALL HAVE SOLE LIABILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND INTELLECTUAL PROPERTY OWNERSHIP OR RIGHT TO USE OF ANY DATA, INFORMATION OR MATERIAL, AND LICENSOR SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CONTENT AND/OR USE OF CONTENT BY LICENSEE.
d) IN NO EVENT WILL LICENSOR, ITS EMPLOYEES, CONTRACTORS, AGENTS OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOSS OF USE, DATA OR PROFITS, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SOFTWARE, OR ANY RESULTS OBTAINED FROM OR THROUGH THE SOFTWARE. LICENSOR WILL NOT BE LIABLE FOR ANY HARDWARE OR PLATFORM OR NETWORK-RELATED OR SERVER ENVIRONMENT PROBLEMS ATTRIBUTABLE TO THE SOFTWARE OR CHANGES TO HARDWARE OR PLATFORM OR NETWORK CONFIGURATION OR SERVER ENVIRONMENT THAT MAY AFFECT THE PERFORMANCE OF THE SOFTWARE AND FOR THE DELAY IN DELIVERY, INSTALLATION OR FURNISHING OF LICENSED MATERIAL OR SERVICES UNDER THIS AGREEMENT.
e) Licensor shall not be liable for any hardware, software, infrastructure or any other services provided to Licensee by any third party.
f) Licensor shall only be held liable for direct damages resulting from its failure to perform obligations under this Agreement. In no event shall the liability of Licensor for any damages exceed the then current License Fees or License Fees payable by Licensee for two (2) months, whichever is less.
14. Indemnity14.1 Indemnification by Licensor
Licensor at its own expense will defend any action brought against Licensee to the extent that it is based on a claim that the software used within the scope of this EULA infringes any patents, copyrights, license or other property right, provided that Licensor is immediately notified in writing of such claim. Licensor shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall Licensee settle any such claim, lawsuit or proceeding without Licensor's prior written approval. If, as a result of any claim of infringement against any patent, copyright, license or other property right, Licensor is enjoined from using the Software, or if Licensor believes that the Software is likely to become the subject of a claim of infringement, Licensor at its option and expense may procure the right for Licensee to continue to use the Software, or replace or modify the Software so as to make it non-infringing. If neither of these two options is reasonably practicable, Licensor may refund only the License Fees paid for the then current term, and not the entire License Fees paid from the beginning of the Initial Term to Licensee.
Licensor may discontinue the license granted herein on one month's written notice and refund only the License Fees paid for the then current term, and not the entire License Fees paid from the beginning of the Initial Term, to Licensee. The foregoing states the entire liability of Licensor with respect to infringement of any copyrights or patents by the Software or any parts thereof.
14.2 Indemnification by Licensee
Licensee hereby agrees that it shall fully indemnify and completely save harmless Licensor and any of its directors, officers, employees, agents and representatives of and from any and all liabilities, claims, expenses or damages including reasonable legal fees and disbursements arising out of any claims or suits for damage or injury to person in connection with, directly or indirectly, in whole or in part,
(i) any negligent act or omission of Licensee's employees, agents, contractors, directors, officers or any person for whom it has a legal responsibility or
(ii) the failure of Licensee to comply with any municipal, state or central law or
(iii) any act or omission which is, or can be determined to be, a breach of any term or condition of this Agreement.
15. TerminationThis Agreement shall be terminated:
a) at the end of the then current Term; or
b) in the event of a material breach of this Agreement by Licensee or Licensor;
c) in the event of termination at any time during the term of Agreement by Licensor or Licensee.
Licensor shall have the right to terminate this Agreement and license(s) granted herein:
a) Upon ten days' written notice in the event that Licensee, its officers or employees violates any provision of this License Agreement including, but not limited to, confidentiality and payment;
b) In the event Licensee
(i) terminates or suspends its business;
(ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute or
(iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority.
Licensee agrees not to terminate this Agreement for any reason before completion of the Initial Term. Thereafter Licensee may terminate this Agreement at any time by unsubscribing to WeLink from the Site or by requesting Licensor to cancel Licensee's subscription to WeLink and Licensor shall not be obligated to refund any remaining portion of License Fees paid by Licensee.
In the event of termination by reason of Licensee's failure to comply with any part of this Agreement, or upon any act which shall give rise to Licensor's right to terminate, Licensor shall have the right, at any time, to terminate the license(s), stop access to licensee and take immediate possession of the documentation wherever located, without demand or notice.
Within five (5) days after termination of the license(s), Licensee will return to Licensor the documentation or upon request by Licensor destroy the documentation, and certify in writing that they have been destroyed. Termination under this paragraph shall not relieve Licensee of its obligations regarding confidentiality of the Software.
Without limiting any of the above provisions, in the event of termination as a result of Licensee's failure to comply with any of its obligations under this EULA, Licensee shall continue to be obligated for any payments due. Termination of the license(s) shall be in addition to and not in lieu of any equitable remedies available to Licensor.
16. TaxesLicensee shall, in addition to the other amounts payable under this EULA, pay all sales, services and other taxes, state, central or otherwise, however designated which are levied or imposed by reason of the transactions contemplated by this EULA. Without limiting the foregoing, Licensee shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor.
17. Software and Hardware RequirementsLicensee shall make available required software, hardware, network or internet access and computer equipment required to use and access WeLink hosted on the Server Environment.
18. Maintenance and Support ServicesLicensor shall provide maintenance and support services in connection to the Software which includes automatic Software upgrades pursuant to the fees, scope and service levels executed concurrently herewith, a copy of which is annexed hereto as Schedule D during the term of Licensee's license for the Software.
Maintenance and support services under this agreement extend only to the Software free of any modifications and such services shall be rendered by Licensor from its location in San Jose, California.
Maintenance and support services do not include and Licensor shall not be liable for any software or hardware or network employed by Licensee to use and access WeLink hosted on the Server Environment.
Licensor reserves the right to cease the provision of maintenance and support services anytime without notice should Licensor, in its sole discretion, determine that continued support for the Software is no longer economically practicable and/or in the event that the Software has become inoperable or incompatible with current operating systems, hardware, or other technologies. Also, abuse of support privileges including, but not limited to, frivolous contact, rude behavior and/or customer incompetence, harassment or failure to follow instructions, may result in the immediate cessation of support services.
19. Custom ModificationsAll custom modifications to the Software shall be undertaken by Licensor at its then current time and materials charges. For each custom modification requested, Licensee shall provide written specifications to Licensor, which shall be mutually agreed upon prior to commencement of such custom modification effort.
20. Non-SolicitationDuring the Term of this Agreement and for a period of one (1) year thereafter, Licensee will not, and will ensure that its affiliates will not, directly or indirectly:
(i) solicit for employment or for performance of any services any person employed by Licensor or
(ii) hire or engage for any services any person employed by Licensor. In the event of a breach of this non-solicitation clause, Licensee agrees to pay Licensor compensation equal to Licensor's employee's annual salary as liquidated damages, which Licensee agrees is fair and reasonable compensation for Licensor.