© 2023 All rights reserved
1.1 License Grant. Subject to Your compliance with the terms of this Agreement, Wendal hereby grants to You a limited, non-exclusive, non-transferable. non-sublicensable, revocable, personal license to access and use the Application. For corporate or institutional subscribers of the Application (“Corporate Subscribers”), usage of the Application is subject to any usage limitations set forth in Your written order form or agreement with Wendal (“Order”), and to use exclusively for Your internal business purposes. For individuals, the Application may only be used for Your personal, non-commercial purposes. (The foregoing shall be referred to as the “Permitted Use” as applicable.) The Application is licensed, not sold. All rights not expressly granted to You herein are reserved to Wendal.
1.2 Scope of Access and Use. The Application is for the exclusive use of Authorized Users. As used herein, an “Authorized User” is an individual authorized by You to use the Application. For Corporate Subscribers, Authorized Users includes the employees, contractors, students, and agents that You authorize to use the Application for a Permitted Use. You are responsible for all use of the Application by Your Authorized Users and shall indemnity and hold Wendal harmless for any misuse of the Application by Your Authorized Users.
1.3 License Restrictions. Except as expressly permitted by this Agreement, You shall not, and shall ensure Your Users do not, undertake, facilitate, or otherwise engage in any of the following: (i) copying of the Application, in whole or in part, (ii) modifying, correcting, adapting, translating, enhancing, or otherwise preparing derivative works or improvements of any Application, (iii) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, or otherwise making available the Application to any third party, (iv) reverse engineering, disassembling, decompiling, decoding, or adapting the Application, or otherwise attempting to derive or gain access to the source code of the Application, in whole or in part, (v) bypassing or breaching any security device or protection used for or contained in the Application, (vi) removing, deleting, effacing, altering, obscuring, translating, combining, supplementing, or otherwise changing any trademarks, terms of any Documentation, warranties, disclaimers, or copyright notices or other proprietary rights notices or other symbols, notices, marks, or serial numbers on or relating to any copy of the Application, (vii) using the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or privacy right of any person, or that violates any applicable law, statute, or regulation, or any judicial or administrative order, rule, or judgment, (viii) using the Application for purposes of benchmarking or competitive analysis of the Application; or in order to develop, use, or create a competitive product, offering, or service; or to compete with the business of Wendal, or otherwise to the detriment or commercial disadvantage of Wendal; (ix) using the Application on any device or equipment not permitted by the Documentation, or (x) access or use the Application in any manner that is inconsistent with the terms of this Agreement.
2 Term and Termination
2.1 Term. The term of this Agreement shall be set forth in the Order or, in the absence of an Order, shall continue until terminated by a party. Without prejudice to any other rights, Wendal may terminate this Agreement immediately upon notice to You if You fail to comply with any of the term(s) hereof. You may terminate this license as provided in your Order or, in the absence of an Order: (a) by providing written notice of termination to Wendal; or (b) by erasing all copies of the Application including all Documentation.
2.2 Effect of Termination or Expiration. In the event of the termination or expiration of this Agreement, the licenses granted hereunder shall immediately terminate and You shall immediately cease all use of the Application and shall destroy any copies of the Application in Your or Your Authorized User’s possession, custody, or control. Termination or expiration of this Agreement shall be without prejudice to any other right or remedy to which Wendal may be entitled under this Agreement or applicable law. Termination or expiration of this Agreement shall not relieve You of Your obligations which survive termination hereof.
3 Security and Audits
3.2 Audits. For Corporate Subscribers: You grant to Wendal or its third party auditors the right to audit or examine Your records and/or information technology environment to verify Your compliance with the terms of this Agreement and the Order; provided however, that Wendal provides reasonable written notice of the foregoing audit or examination, and such audit or examination is conducted in a manner that does not unreasonably interfere with Your normal business operations. In the event such audit or examination discloses non-compliance with this Agreement, You shall promptly pay to Wendal any applicable license fees that may be due and shall pay for all the cost of the audit or examination described herein in addition to any other remedies available to Wendal at law or in equity.
4 Application Support
4.1 Updates and Upgrades. Wendal shall release bug fixes, patches, corrections or other updates (“Updates”) or new releases (“Upgrades”) to the Application in its sole discretion. All such Updates or Upgrades shall be considered part of the Application and shall be subject to the terms and conditions of this Agreement.
4.2 Support Services. If specified in an Order, Wendal may provide support services for the Application (“Support Services”). Any supplemental product, Application, code, or documentation provided to a You as part of the Support Services shall be considered part of the Application, as applicable, and subject to the terms and conditions of this Agreement.
4.3 Professional Services. Subject to the terms of a separate written statement of work, Wendal may perform professional consulting to You in the form of technical consulting, data management or data consulting services. All such professional services shall be subject to additional charge and the payment terms and other terms and conditions set forth in the statement of work.
5 Fees. Wendal provides the Application under various pricing models including on a transactional or pay-as-you-go basis, as well as on a subscription basis. All access and use of the Application on a transactional basis is subject to the pricing term displayed at the time of the transaction. All access and use of the Application on a subscription model shall be subject to the pricing terms set forth in the Order.
6 Confidential Information. You acknowledge that during the Term of this Agreement You may receive, have access to, or become aware of, trade secrets, proprietary information, or other confidential information of Wendal, including information or data related to the Application (“Confidential Information”). You agree to implement and maintain commercially reasonable security measures to safeguard and protect the secrecy and confidentiality of all such Confidential Information, whether or not identified or marked as confidential at the time of its disclosure, and not to disclose any Confidential Information to any person, firm, or entity other than its own employees who have a “need to know” such Confidential Information related to the Permitted Use. Further, You shall not use or disclose any Confidential Information for any purpose not permitted by this Agreement. Unless otherwise protected by law, the restrictions on disclosure set forth herein shall not apply when, and to the extent that, Confidential Information: (i) is part of the public domain through no action or failure to act by You; (ii) is made available to the general public by Wendal or a third party who is lawfully in possession of such information, not as a result of any action or failure to act on the part of You; (iii) was previously known to You free of any obligation to keep it confidential; (iv) is subsequently disclosed to You free of any obligation to keep it confidential; or (v) is independently developed by You or a third party other than in breach of this Agreement.
7 Intellectual Property
7.1 Ownership. The Application is licensed, not sold. You do not acquire ownership rights in the Application, Documentation, or Results. Corporate Subscriber may use the functionality of the Application to configure professional survey elements to its business needs, including by assigning a weight to certain survey elements. In all such cases, the configurations shall be part of the Application and the property of Wendal. You agree that You will not state, imply or claim ownership of Wendal, the Application, or any Results, or take any actions adverse to the proprietary interests of Wendal in and to the Application.
7.2 IP Protection. You shall, during the Term (i) undertake all commercially reasonable measures to safeguard the Application (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (ii) at Wendal’s expense, take all such steps as Wendal may reasonably require to assist Wendal in maintaining the validity, enforceability and Wendal’s ownership of the intellectual property rights in the Application; (iii) promptly notify Wendal in writing if You become aware of any actual or suspected infringement, misappropriation or other violation of Wendal’s intellectual property rights in or relating to the Application; (iv) promptly notify Wendal in writing if You become aware of any claim that the Application, including any production, use, marketing, sale or other disposition of the Application, in whole or in part, infringes, misappropriates or otherwise violates the intellectual property rights or other rights of any third party; and (v) at Wendal’s sole expense, fully cooperate with and assist Wendal in all reasonable ways in the conduct of any legal action by Wendal to prevent or abate any actual or threatened infringement, misappropriation or violation of Wendal’s rights in, and to attempt to resolve any legal actions relating to, the Application.
8 Disclaimers and Liability
8.1 LIMITED WARRANTY. To the extent that Your use of the Application is provided to You free of charge, Wendal provides the Application to you on an “AS IS” basis without warranties of any kind, express or implied. For Corporate Subscribers, Wendal warrants that the Application will operate in accordance with its Documentation for a period of ninety (90) days after installation. Your sole remedy and Wendal’s sole liability for any breach of warranty shall be for Wendal to repair or replace the Application. The above warranty is conditioned upon Your use of Application in accordance with the terms of this Agreement. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES MADE BY WENDAL REGARDING THE APPLICATION AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH WARRANTIES ARE HEREBY DISCLAIMED.
8.2 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WENDAL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WENDAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WENDAL’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES EXCEED THE LESSER OF THE AMOUNT OF THE FEES PAID FOR THE APPLICATION, OR $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9 Indemnification. You shall indemnify, defend and hold harmless Wendal and its affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, arising in connection with or related to: (i) the material breach of any term of this Agreement by You, or any Authorized User; (ii) Your acts and omissions in connection with use of the Application; (iii) Your use of the Application in violation of any applicable law, rule or regulation; or (iv) the violation, infringement or misappropriation by You or any employee or agent of You, of the intellectual property rights of Wendal or the proprietary rights of any third party.
10.2 Export Controls. You shall comply with all federal, state, local and foreign laws, regulations, rules and ordinances pertaining to the operations and conduct of Your business and the license granted to You under this Agreement. You may not use or otherwise export or re-export the Application without the consent of Wendal and then only as authorized by United States law. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
10.2 Governing Law; Disputes. This Agreement shall be governed by the laws of the State of Ohio, excluding its conflicts of law rules. The Federal and state courts in Hamilton County, Ohio will have exclusive jurisdiction of any legal action arising out of this Agreement and each party irrevocably submits to the exclusive jurisdiction of such courts. The parties expressly disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. You acknowledges that Wendal has invested significant resources and expense in the development of the Application and that violations of the terms of this Agreement could cause irreparable harm to Wendal. Accordingly, Wendal shall have the right to seek immediate injunctive relief without the necessity of posting bond in the event of Your breach or threatened breach of any confidentiality obligation, or in the event of Your infringement or misappropriation of Wendal’s intellectual property rights.
10.3 Notice to Government End Users. The Application, including any documentation, is provided to the United States Government with RESTRICTED RIGHTS. The Licensed Application is a “commercial item” developed exclusively at private expense, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined or used in the applicable U.S. Federal Acquisition Regulations (“FAR”). The Application is licensed hereunder only as a commercial item and with only those rights as are granted to all other Licensees pursuant to the terms and conditions of this Agreement. Nothing in this Agreement requires Wendal to produce or furnish technical data for or to You. All Application provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. The Application is classified as “restricted computer software” and provided to the U.S. Government with RESTRICTED RIGHTS, as provided under applicable federal acquisition laws and regulations. The manufacturer is Wendal Inc., 910 Madison Ave, Covington, KY 41011.
10.4 Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by U.S. mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt. Should You have any questions concerning this Agreement, or if You desire to contact Wendal for any reason, please write to the following: Wendal Inc., 910 Madison Ave, Covington, KY 41011 Attn: Brad Zapp.
10.5 Miscellaneous. In the event that any term of this Agreement is declared invalid or unenforceable by any court of competent jurisdiction or any federal or state government agency having jurisdiction over the subject matter of this Agreement, the remaining terms and provisions that are not affected thereby shall remain in full force and effect. A waiver of any provision of this Agreement shall only be effective if in a writing signed by the party against which the waiver is claimed. This Agreement may not be assigned by You without the prior written consent of Wendal.
10.6 Entire Agreement. This Agreement together with the Order is the entire agreement between You and Wendal relating to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter of this Agreement.
BY ACCESSING AND USING THE APPLICATION, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT.