PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE DOWNLOADING OR INSTALLING THE WEFI SOFTWARE (DEFINED BELOW). BY OPENING THE ATTACHED FILE AND/OR INSTALLING AND/OR USING THE WEFI SOFTWARE YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION (“LICENSEE”) ENTERED INTO BY AND BETWEEN WEFI, INC., LOCATED AT 2551 DULLES VIEW DR. HERNDON VA 20171 (“LICENSOR”) AND LICENSEE, EFFECTIVE UPON DELIVERY OF THE ATTACHED FILE TO LICENSEE ("EFFECTIVE DATE"). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN DO NOT DOWNLOAD AND/OR INSTALL THE WEFI SOFTWARE AND IMMEDIATELY ERASE THE WEFI SOFTWARE AND ANY PART THEREOF, FROM LICENSEE'S COMPUTERS AND DO NOT USE IT IN ANY MANNER WHATSOEVER.
Subject to the terms of this Agreement Licensor grants Licensee a non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable right and license to receive the Licensor proprietary software services known as Wefi SDK including the Licensor data made available therein ("Wefi Software"). Licensee shall not: (a) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, or disclose the WeFi Software or any part thereof, and shall not make the WeFi Software available to any third party; (b) Licensee shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the WeFi Software or attempt to discover the source code thereof; (c) Licensee shall not access the WeFi Software in order to build a similar or competitive product or service or to publish any performance or benchmark test or analyses relating to the WeFi Software. Upon expiration of the license: (i) Licensee shall cease any and all use of the Wefi Software and shall erase/delete the WeFi Software and any Licensor confidential information held by it in electronic form, and confirm in writing to Licensor that it has complied with its obligations under this Section 1; and (2) this Agreement shall expire but for Sections 2-5 below which will remain in effect.
The WeFi Software is licensed, not sold. Licensor and its licensors retain exclusive ownership of all right, title and interest in and to the WeFi Software and all modifications, derivatives and enhancements thereof and Intellectual Property Rights in connection therewith and data generated in connection therewith ("WeFi IPR"). Licensee acknowledges that, except for the limited license rights expressly provided in this Agreement, no right, title, or interest to the Intellectual Property Rights in the WeFi Software is provided to Licensee, and that Licensee does not obtain any rights, express or implied, in the WeFi Software. All rights in and to the WeFi Software not expressly granted to Licensee in this Agreement are expressly reserved to Licensor and its licensors. The WeFi IPR (shall be deemed Licensor confidential information and Licensee agrees to not share any such information with any third party and not to permit any third party access to the information. "Intellectual Property Rights" means all worldwide registered or unregistered (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
Disclaimer of Warranties
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE WEFI SOFTWARE IS AT LICENSEE'S SOLE RISK. THE WEFI SOFTWARE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. LICENSOR AND/OR ITS LICENSORS DO NOT WARRANT THAT USE OF THE WEFI SOFTWARE WILL BE UNINTERRUPTED, OR ERROR-FREE AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT. The entire risk arising out of use or performance of the WeFi Software remains with Licensee.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS LICENSORS, SUPPLIERS, RESELLERS OR AGENTS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY TYPE INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between Licensor and Licensee.
Licensee may not assign or transfer the rights or obligations granted to Licensee in this Agreement and any such attempted assignment or transfer shall be void and without effect. Licensor’s failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. This Agreement shall be governed by the laws of the State of Delaware without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Licensee agrees to submit to the exclusive jurisdiction of the courts located within Delaware for the purpose in connection herewith. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any notice to Licensee may be provided by e-mail. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect. Unless expressly agreed otherwise, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Licensor and Licensee any rights, remedies or other benefits under or by reason of this Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements between the parties pertaining to the subject matter hereof and/or any future Licensee pre-printed terms and conditions, including without limitation on any purchase order and/or invoice. Licensee shall be solely responsible to ensure that its use of the WeFi Software is in compliance with all foreign, federal, state, and local laws and regulations, including without limitation, all laws and regulations relating to export controls, privacy rights and data protection. Without derogating from the warranties foregoing, Licensee acknowledges and undertakes that the WeFi Software or underlying information or technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Lebanon, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. Licensee shall indemnify Licensor for all claims or alleged claims for a breach of any of the warranties and covenants set forth in this Agreement.