The TradeWeed software, service, images, and client interfaces along with custom flow solutions and any custom implementations and accompanying documentation (“TradeWeed”) is licensed and not sold. The TraceWeed package of licensed software and materials is referred to collectively as the “Proprietary Technology”. TradeWeed is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Dauntless Software, Inc. or its subsidiaries, affiliates, and suppliers (collectively “Licensor”) own all intellectual property rights in the TraceWeed product. The Licensee’s (“Licensee”) license to download, use, copy, interface, or change TraceWeed is subject to these rights and to all the terms and conditions of this End User License Agreement (“Agreement”).
This Agreement and any supplemental license terms (collectively, the “EULA”) governs Licensee use of TraceWeed and replaces all other Agreements previously put into place between Licensor and Licensee as pertains to the use of TraceWeed.
LICENSEE ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SELECTING THE “ACCEPT” OPTION AND ACCESSING AND/OR DOWNLOADING THE TRACEWEED SERVICE OR BY INSTALLING, USING, OR COPYING TRACEWEED TO LICENSEE’S DEVICE(S). LICENSEE MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE LICENSEE MAY USE TRACWEED. IN ABSENSE OF A RECORDED ACCEPTANCE, IN USING TRACEWEED LICENSEE IS DE FACTO ACCEPTING THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST SELECT “DECLINE” AND LICENSEE MUST NOT INSTALL, USE, COPY, OR DOWNLOAD TRACEWEED.
As used in this Agreement, the following terms, with the initial letters capitalized, shall have the meanings set forth below. Other terms used in this Agreement with initial letters capitalized shall have the meanings described within the text of this Agreement.
“Intellectual Property Rights” means collectively all intellectual property or other proprietary rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including, but not limited to: (i) patents, inventions, designs, copyrights, trademarks, service marks, logos, trade secrets, know-how, trade dress, “moral rights,” mask works, publicity rights, privacy rights and any other intellectual property or proprietary rights whether registered, unregistered, statutory, common law or otherwise (including the right to sue or recover and retain damages and costs and attorneys’ fees for past, present and future infringement, dilution, misappropriation, or other violations thereof); and (ii) any application or right to apply for any of the rights referred to in clause (i) and any and all renewals, extensions and restorations thereof.
“Proprietary Technology” means the software (including fully functional modules and components), source code, services (including any current integration into third party applications and tools), databases, and any related algorithms, designs, drawings, specifications, plans, pictures, data, databases and documentation.
This Agreement entitles Licensee to install and use TraceWeed as a non-exclusive, revocable, nontransferable right and license to use the Proprietary Technology on as many devices as needed for a single licensed facility. Licensor shall retain all right, title, and interest to the Proprietary Technology. The Licensee acknowledges that it neither owns nor acquires any rights in the Proprietary Technology with this Agreement.
Licensee agrees to pay to Licensor the initial activation invoice, prior to downloading and using TraceWeed in production. A monthly service fee (“Monthly Fee”), calculated based on services requested, will be due within ten (10) days of invoice for each monthly service period in the month prior to service use. Subsequent Monthly Fees will be due on the same day of each month prior to the service month for which it is applied. A finance charge of 1.5% per month, or the maximum legal rate if lower, will be assessed for every 30 days that a payment is overdue and outstanding. If payment is outstanding for thirty days or longer, then, without further notice to Licensee, Licensor may declare Licensee’s account delinquent and stop performing work, revoke the license to the Proprietary Technology, and/or deactivate services or software provided under this Agreement until such a time as payment is no longer outstanding including any applicable outstanding interest, re-installation fees, or finance charges. Licensee agrees to pay all costs of collection, including reasonable attorneys’ fees, in the event collection efforts become necessary.
Restrictions on Transfer
Without first obtaining the express written consent of Licensor, Licensee may not assign rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Licensee rights to use TraceWeed.
Restrictions on Use
Licensee may not use, copy, or install TraceWeed in more than a single facility for each license. If Licensee holds multiple licenses, TraceWeed may be installed on as many devices as needed at the number of facilities permitted by the licenses (one facility per license).
Licensee may not decompile, “reverse-engineer”, disassemble, or otherwise attempt to derive the source code for TraceWeed.
Licensee my not use the database portion of TraceWeed in connection with any software other than TraceWeed.
Licensee will provide or purchase all necessary hardware, storage, software (with the exception of TraceWeed), internet access, Wi-Fi, and bandwidth to enable TraceWeed at their facility. Any costs related to such purchases, travel, and labor will be the responsibility of the Licensee.
Restrictions on Alteration
Licensee may not modify TraceWeed or create any derivative work of TraceWeed or its accompanying documentation. Derivative works include but are not limited to translations. Licensee may not alter any files or libraries in any portion of TraceWeed. Licensee may not reproduce the database portion or create any tables or reports relating to the database portion.
Restrictions on Copying
Licensee may not copy any part of TraceWeed except to the extent that licensed use inherently demands to deploy the application to multiple devices at a single facility.
Restrictions on Use of Name
Licensor may use Licensee’s name and logo as it pertains to Licensee’s usage of TraceWeed without prior approval. Otherwise, neither party shall have any right to use the name, trademarks, or other marks of the other Party without the other Party’s written approval.
Disclaimer of Warranties
EXCEPT AS OTHERWISE PROVIDED IN THIS LICENSE AGREEMENT, THE LICENSOR PROVIDES THE LICENSE, THE PROPRIETARY TECHNOLOGY, AND ANY DEVELOPMENT OR MAINTENANCE WORK PROVIDED UNDER THIS LICENSE AGREEMENT “AS IS” AND WITHOUT FURTHER WARRANTY. THE LICENSOR EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSOR EXPRESSLY DOES NOT WARRANT THAT THE GOODS AND SERVICES PROVIDED BY IT UNDER THIS LICENSE AGREEMENT WILL ATTRACT A CERTAIN NUMBER OF CUSTOMERS, CLIENTS, OR USERS—OR A PARTICULAR CUSTOMER, CLIENT OR USER—OR THAT THE TECHNOLOGY WILL ENABLE THE LICENSEE TO ACHIEVE ANY SPECIFIC BUSINESS PURPOSE, EVEN WHERE THE LICENSEE HAS ADVISED THE LICENSOR OF ITS BUSINESS PURPOSES AND OBJECTIVES FOR THE SERVICES. THE LICENSOR DISCLAIMS ALL FUTURE WARRANTIES THAT MAY ARISE BETWEEN THE PARTIES FROM A COURSE OR DEALING OR TRADE.
Licensor makes no warranty that TraceWeed will meet your requirements or operate under your specific conditions of use. Licensor makes no warranty that operation of TraceWeed will be secure, error free, or free from interruption. LICENSEE MUST DETERMINE WHETHER TRACEWEED SUFFICIENTLY MEETS LICENSEE’S REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. LICENSEE BEARS SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF TRACEWEED TO MEET YOUR REQUIREMENTS. LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE NOT MAINTAINED BY LICENSOR.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO LICENSEE OR ANY OTHER PARTY UNDER ANY LEGAL THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS), HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF TRACEWEED, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF LICENSOR OR ANY OTHER PARTY, EVEN IF LICENSEE HAS BEEN ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES, TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMIT LICENSOR’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
Limitation of Remedies and Damages
Licensee remedy for a breach of this Agreement for any warranty included in this Agreement is the correction or replacement of TraceWeed. Selection of whether to correct or replace shall be solely at the discretion of Licensor. Licensor reserves the right to substitute a functionally equivalent copy of TraceWeed as a replacement. If Licensor is unable to provide a replacement or substitute TraceWeed product or correction to TraceWeed, Licensee’s sole alternate remedy shall be the cancellation of the TraceWeed service which will go into effect at the end of the currently paid service time.
Any claim must be made within the applicable warranty period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by Licensor to have been caused by Licensee. All limited warranties on TraceWeed are granted only to Licensee and are non-transferable. Licensee agrees to indemnify and hold Licensor harmless from all claims, judgements, liabilities, expenses, or costs arising from Licensee breach of this Agreement and/or acts or omissions.
This Agreement will be governed by and construed in accordance with the laws of the State of Washington, USA without regard to conflict of laws principles.
If any provision of this Agreement is declared to be invalid under any applicable statute or rule of law, the remaining portions of this Agreement shall remain in full force and effect. To the extent any expressed or implied restrictions are not permitted by applicable laws, these expressed or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.