This Software Licensing Agreement (“Agreement”), is made and entered into by and between Woobot, Inc, a Delaware Corporation, (“Woobot”) and (“Licensee”).
A.) Woobot has developed proprietary software and data to allow Licensee to [integrate its instances of Slack, Microsoft Teams, and Salesforce.com, together with other functionality] (the “Woobot Software”). The parties desire that Woobot license the Woobot Software to Licensee in accordance with the terms and conditions set forth in this Agreement.
B.) The parties desire that Woobot license the Woobot Software to Licensee in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensee and Woobot agree as follows:
Woobot hereby grants to Licensee a limited, revocable, non-sublicensable, non-transferable, non-exclusive, license to use the Woobot Software solely to [integrate its instances of Slack, Microsoft Teams, and Salesforce.com], and any other features provided by Woobot for clients that are using Woobot (the “Limited Purpose”). Licensee may not use the Woobot Software for any purpose other than the Limited Purpose. Woobot reserves all rights not expressly granted to Licensee in this Agreement. Licensee shall not: (a) copy the Woobot Software; (b) modify, or create derivative works or improvements of the Woobot Software; (c) remove, disable, or otherwise create or implement any workaround to, any security features contained in the Woobot Software; (d) remove, delete, or alter any trademarks, copyright notices, or other Intellectual Property Rights notices of Woobot or its licensors, if any, from the Woobot Software; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Woobot Software available to any other person or entity; or (f) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Woobot Software, whole or in part. Licensee agrees that Woobot and/or its licensors own all legal right, title and interest in and to the Woobot Software, and all derivative works thereof (the “Woobot Materials”), including any Intellectual Property Rights therein. Nothing in this Agreement gives Licensee a right to use any of Woobot’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without written authorization from Woobot, which may be withheld in Woobot’s sole discretion. Licensee agrees that the form and nature of the Woobot Software that Woobot provides may change without prior notice to Licensee and that future versions of the Woobot Software, if any, may be incompatible with applications developed by Licensee on previous versions of the Woobot Software. Licensee agrees that Woobot may stop (permanently or temporarily) providing the Woobot Software (or any features within the Woobot Software) to Licensee generally at Woobot’s sole discretion, with 30 days prior notice to Licensee.
2. Consideration and Terms
Except as set forth in this Agreement, all payments are non-refundable and, except as set forth in the Order Form, shall be made in U.S. dollars within thirty (30) days from the date of Woobot’s invoice. Licensee will be responsible for all taxes, withholdings, duties and levies (excluding taxes based on the net income of Woobot).
The term of this Agreement shall begin on the Effective Date located on your Woobot Order Form and shall continue until the end date included on your Woobot Order Form. (the “Initial Term”).
4. Intellectual Property
“Intellectual Property” includes all of the following owned by Woobot: (i) trademarks and service marks (registered and unregistered) and trade names, and associated goodwill; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit their use or disclosure; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by Woobot in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, Woobot does not grant any right or license to Licensee by implication, estoppel or otherwise to the services or any Intellectual Property Rights of such party. Woobot shall retain all ownership rights, title, and interest in and to its own products and services and all related Intellectual Property Rights. Licensee shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received in connection with this Agreement.
Licensee and Woobot acknowledge that either could be provided with certain non-public confidential and proprietary information concerning the business and operations of the other and that such information constitutes confidential and proprietary information (“Confidential Information”) owned solely by Licensee or Woobot, as applicable. During the Term or at any time following its termination neither party shall disclose any information with regard to the other’s customers, product designs, processes, relations, suppliers or other Confidential Information to any third party. Each party undertakes to use all Confidential Information solely for the purpose of this Agreement, to disclose such information in its organization only on a need to know basis and to take reasonable precautions to avoid disclosure to parties for which the Confidential Information is not intended.
6. Representations and Warranties
Licensee represents and warrants that it shall only use the Woobot Software for the Limited Purpose in compliance with all applicable laws, regulations or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries, which laws may include restrictions on destinations, end users and end use) and on computers under its control. Licensee further represents and warrants that its use of the Woobot Software shall not: (i) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (ii) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (iii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (iv) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent. WOOBOT does not represent or endorse, and shall not be responsible for: (a) the reliability or performance of any business; (b) the safety, quality, accuracy, reliability, integrity or legality of any service or product obtained from a business; (c) the truth or accuracy of the description of any service or product of a business, or of any advice, opinion, offer, proposal, statement, data or other information (collectively, “Content”) displayed or distributed, purchased or paid through the Services; or (d) Licensee’s ability to buy or redeem products and services using the Services. WOOBOT hereby disclaims any liability or responsibility for errors or omissions in any Content in the Services. WOOBOT reserves the right, but shall have no responsibility, to edit, modify, refuse to post or remove any Content, in whole or in part, that in its sole and absolute discretion is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.
With 30 days prior notice, Woobot may audit Licensee’s compliance with the terms of this Agreement. This audit may be conducted at all sites where Licensee installs or uses the Woobot Software and will be conducted during normal business hours in a manner that minimizes disruption to Licensee’s business. Woobot may use an independent auditor to assist in the audit provided such auditor has a confidentiality agreement in place with Woobot. To the extent that the audit reveals any underpayment due to Woobot, Licensee shall (a) promptly pay the money owed and (b) the actual cost of the audit.
8. Disclaimer of Warranties
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE WOOBOT SOFTWARE IS AT LICENSEE’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE WOOBOT SOFTWARE AND ANY SUPPORT SERVICES ARE PROVIDED TO LICENSEE “AS IS”, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND (B) WOOBOT AND ITS LICENSOR(S) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WOOBOT AND ITS LICENSORS DO NOT WARRANT THAT THE WOOBOT SOFTWARE SHALL PERFORM ERROR FREE OR WITHOUT INTERRUPTION, OR THAT IT IS FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS.
9. Limitation of Liability
EXCEPT FOR DAMAGES INCURRED BY WOOBOT FROM (I) ANY USE OF THE WOOBOT SOFTWARE BEYOND THE SCOPE OF THE RIGHTS GRANTED IN THIS AGREEMENT BY WOOBOT TO LICENSEE; (II) ANY MISAPPROPRIATION OR UNAUTHORIZED USE OF THE WOOBOT SOFTWARE OR INTELLECTUAL PROPERTY RIGHTS OF WOOBOT AND ITS LICENSORS; OR (III) LICENSEE’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR EXCEPT FOR DAMAGES INCURRED BY THE LICENSEE ARISING OUT OF ANY THIRD PARTY IPR INFRINGEMENT CLAIMS FOR USING THE LICENSE PURSUANT TO THE TERMS OF THIS AGREEMENT; NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES TO THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY KIND. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 9, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE IN RELATION TO THIS AGREEMENT, EXCEED THE TOTAL AGGREGATE AMOUNT EXCHANGED.
10. Force Majeure
Woobot’s failure to perform, or delay in performing, any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, riots, acts of terrorism, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement.
This Agreement shall be governed by New York law except for its conflicts of laws principles. The parties consent to the exclusive jurisdiction and venue of the state and federal courts for the State of New York for any action arising out of this Agreement. For any action arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees. The Agreement constitutes the entire agreement between the parties with respect to its subject matter. Any conflicting or additional terms contained in additional documents (including but not limited to Licensee purchase order terms and conditions) or oral discussions are void and of no legal effect. Any modifications to this Agreement must be made in a writing (not including email) executed by both parties. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, except that Woobot may assign this Agreement to any of its affiliates or related parties, or in connection with merger or acquisition, without the consent of Licensee. No failure to pursue any remedy, or delay in the exercise of any remedy, resulting from a breach of this Agreement by the non-breaching party shall be construed as a waiver of that breach by the non-breaching party or as a waiver of any subsequent or other breach. No waiver of any rights of a party or obligations of the other party shall be effective unless consented to in a writing signed by an authorized representative of the party against which enforcement is sought. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same Agreement.