This Product License Agreement (“Agreement”) is made effective by and between the “Licensee,” and Qwickly, Inc., an Ohio (state incorporated) company (“Vendor”). This Software License (the "License") is a legal agreement between Vendor and Licensee, the recipient of a copy of the Vendor software product (the "Software Product"), which includes computer software, and may include printed materials, and electronic or "online" documentation and/or related items (collectively, the "Software Product").
WHEREAS, Vendor has the personnel, capabilities, experience and resources necessary to provide the Deliverables; and
WHEREAS, the Licensee desires to retain Vendor and Vendor desires to provide the Deliverables described in this Agreement under the terms of this Agreement;
NOW, THEREFORE, the parties, in consideration of the mutual covenants and promises contained herein, hereby agree as follows:
By downloading, installing, copying, or otherwise using the Software Product, Licensee agrees to be bound by the terms and conditions of this License. If Licensee does not agree to all of the provisions of this License, Licensee may not download, install or copy or otherwise use the Software Product.
1. LICENSE GRANT. Vendor hereby grants Licensee a non-exclusive license to use the Software Product solely to obtain QWICKLY SOFTWARE SERVICES (“Services”). The Software Product incorporates various intellectual property rights, that may, include, without limitation, copyrights, trademarks, patents, trade secrets and other proprietary rights (collectively, the "Intellectual Property Rights"). While Licensee has been provided with a copy of the Software Product, Vendor retains all rights, title and interests in and to the computer software comprising the Software Product and the Services and all Intellectual Property Rights embodied therein.
2. RIGHTS AND RESTRICTIONS. The Software Product is protected by U.S. and foreign copyright laws and international copyright treaties, as well as by other such intellectual property laws and treaties. The Software Product is licensed (and not sold) to Licensee, and any and all rights not expressly granted to Licensee herein are reserved by Vendor.
3. INSTALLATION AND STATISTICS. Licensee may install the Software Product on one or more servers that are running supported Learning Management Systems, including test and development servers. Vendor will collect statistics that return aggregate numbers of tool use.
4. REVERSE ENGINEERING. Licensee shall not, nor shall Licensee permit anyone to adapt or otherwise modify, create any derivative work, or decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code from, the Software Product (or any portion thereof).
5. UPGRADES AND RELATED PRODUCTS. Vendor may from time to time, at its sole discretion, make an upgrade or other such revised version of the Software Product (an "Upgrade") available and notify Licensee of the applicable terms and conditions for receiving any such Upgrade. Vendor may, in its sole discretion, offer additional or optional software and/or services in connection with the Services to Licensee or its end-users.
6. NO ASSIGNMENT. Licensee may not assign or otherwise transfer the Software Product provided to Licensee, or any copies thereof, or any of Licensee’s rights or obligations under this License.
7. PAYMENT. Payment of the license fee shall be made WITHIN SIXTY (60) DAYS FOLLOWING THE Effective Date of the Agreement. In the event any overdue amount owed by Licensee is not paid following ten (10) days written notice from Vendor, then in addition to any other amount due, Vendor may impose and Licensee shall pay a late payment charge at the rate of one percent (1%) per month on any overdue amount. License. Vendor hereby grants to Licensee a non-exclusive, limited license to use the Software as set forth in this Agreement for period specified in invoice and may be extended by renewal of the license.
8. TERMINATION. In the event that Licensee fails to comply with the terms and conditions of this License, the license granted hereunder will automatically terminate (with all other rights of both parties and all other provisions of this License surviving any such termination). In the event this License is terminated, Licensee must destroy all copies of the Software Product (including all components thereof) and of each Upgrade thereto.
9. NO WARRANTIES. THE SOFTWARE PRODUCT AND ANY UPGRADE THERETO IS/ARE PROVIDED TO LICENSEE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND OR NATURE. VENDOR MAKES, AND LICENSEE RECEIVES, NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION, REGARDING THE SOFTWARE PRODUCT AND ANY UPGRADE THERETO.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDOR SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE DAMAGES, OR OTHER DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT AND/OR ANY UPGRADE THERETO, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, AND LICENSEE HEREBY ASSUMES ALL RISK AS TO THE QUALITY, PERFORMANCE, OPERATION OF AND/OR INABILITY TO OPERATE THE SOFTWARE PRODUCT AND/OR ANY UPGRADE THERETO. IN NO EVENT SHALL QWICKLY’S LIABILITY HEREUNDER, IF ANY, EXCEED THE PRICE WHICH LICENSEE PAID FOR THE ITEM(S) WHICH IS/ARE THE SUBJECT OF ANY CLAIMED LIABILITY.
11. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software Product and all Upgrades (if any) thereto are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. "Manufacturer", as such term is used therein, is QWICKLY INC, LEGAL ADDRESS IS 18781 RIVERCLIFF DRIVE, FAIRVIEW PARK, OH 44126.
12. EXPORT LIABILITY ASSURANCES. Licensee agrees and certifies that the Software Product will not be exported outside the United States except as authorized and permitted by the laws and regulations of the United States. Licensee agrees that it will not re-export the Software Product except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which it obtained the Software Product.
13. ENTIRE AGREEMENT. This License constitutes the entire agreement and understanding of the parties relating to the subject matter hereof. The headings of the Sections and subsections of this License are for convenience of reference only and shall not be of any effect in construing the meanings of any Section or provision hereof. If any provision of this License (or part thereof) is determined by a court of competent jurisdiction to be void, invalid or otherwise unenforceable, such provision (or part thereof) shall be deemed deleted from this License, while the remaining provisions of this License shall continue in full force and effect. No failure or delay by either party in exercising any right, power or remedy under this License shall operate as a waiver of any such right, power or remedy.
BY REVIEWING THE AGREEMENT AND NOT ADDRESSING POTENTIAL CONCERNS, LICENSEE IS ACKNOWLEDGING AND ACCEPTING ALL OF THE PROVISIONS OF THIS LICENSE.
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