IMPORTANT- READ CAREFULLY
THIS END-USER LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR SINGLE ENTITY) (HEREAFTER REFERRED TO AS “LICENSEE”) AND ROWND LLC, A NORTH CAROLINA LIMITED LIABILITY COMPANY (HEREAFTER REFERRED TO AS “ROWND”) FOR THE USE OF THE SOFTWARE AND RELATED DOCUMENTATION (THE “SOFTWARE”) BEING PROVIDED BY ROWND TO LICENSEE CONCURRENTLY WITH LICENSEE’S ACKNOWLEDGEMENT OF THIS AGREEMENT.
BY ACCESSING, RUNNING, OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE IS NOT AUTHORIZED TO ACCESS OR USE THE SOFTWARE AND SHOULD IMMEDIATELY DISCONTINUE USE OF THE SAME.
Grant of License. Rownd hereby grants to Licensee a nonexclusive, non-sublicensable, nontransferable license to access and use the Software solely for Licensee’s internal business purposes on a software-as-a-service basis, according to the terms and conditions of this Agreement. Except for the license expressly granted herein, no right, title, or interest in the Software is transferred to Licensee by this Agreement.
Rights and Limitations
(a) Licensee agrees to solely use the Software for its internal business use and will not provide access to the Software to anyone other than its employees, contractors or consultants under written contract agreeing to be bound by terms at least as protective as this Agreement (collectively the “Authorized Users”, each an “Authorized User”). Licensee shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Software in any way; (ii) make copies, download, modify or make derivative works based upon the Software; (iii) reverse engineer, decompile, disassemble, or reconfigure the Software; (iv) access the Software in order to build a competitive product or service; (v) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (vi) intentionally interfere with or disrupt the integrity or performance of the Software or the data contained therein.
(b) Access to the Software is being provided to Licensee solely for the internal use of Licensee and its Authorized Users. Licensee assumes full responsibility for any and all use of the Software by all Authorized Users. Prior to using the Software, the Licensee agrees, on behalf of itself and each Authorized User when registering for the Software: (a) to provide Rownd with true, accurate, current and complete information; and (b) to inform Rownd promptly of any changes to such information. Licensee will be responsible for securing all user IDs and passwords provided to or generated by Licensee or Rownd for Licensee’s use of the Software. Licensee will promptly notify Rownd in the event of any unauthorized use or disclosure of such user IDs or passwords. Licensee acknowledges that its use of the Software is subject to usage limits set forth in the order form provided to Licensee in connection with this Agreement concerning the number of Authorized Users. Licensee agrees to abide by all such limits and will be responsible for any additional fees associated with use that exceeds the stated usage limits.
(c) A breach by any Authorized User of any provision of this Agreement will constitute a breach hereof by Licensee. Rownd reserves the right to terminate or suspend any Authorized User’s right to access or use the Software if Rownd reasonably believes that such Authorized User is using the Software in a manner that violates this Agreement; provided, however, that Rownd will promptly notify Licensee in the event any Authorized User is suspended or terminated.
(d) Licensee shall comply with all applicable U.S. laws and regulations in connection with Licensee’s and its Authorized Users use of the Software, including but not limited to privacy laws and export control laws and regulations. Licensee shall notify Rownd immediately upon becoming aware of any unauthorized use of the Software or any other known or suspected breach of security with respect to the Software.
Payments. Licensee agrees to pay all fees set forth in the applicable order form provided to Licensee in connection with registering to access the Software (whether provided electronically or on paper). All fees due under this Agreement are non-cancelable and the sums paid are nonrefundable. Unless otherwise stated in the order form, all fees shall be due in advance on a monthly basis. Licensee hereby authorizes Rownd to charge the credit card, debit card or bank account provided by Licensee to Rownd in connection with this Agreement on the first of every month during the Term for the fees due under the Agreement. Licensee warrants that the account information is accurate and current and that the account has sufficient funds to satisfy the fees incurred. Licensee agrees to notify Rownd of any changes in its payment information and to be responsible for any bank or credit card fees, penalties are charges resulting from the insufficiency of available funds. Licensee agrees to pay any sales, value-added or other similar taxes imposed by applicable law for the right to access the Software. Licensee acknowledges that Rownd may offer additional services or software products that may be used with, or in addition to, the Software. Licensee’s right to access additional services or use other software products offered by Rownd must be according to a separate written agreement between Licensee and Rownd and nothing herein shall be interpreted to give Licensee rights to use or access any other services or software products provided by Licensee.
Maintenance; Updates. Rownd may from time-to-time, and in its exclusive discretion, update the Software in order to, among other things, correct errors or bugs, improve the performance of the Software or increase the functionality of the Software. Licensee acknowledges that such updates may change or modify certain functions or features of the Software. Rownd shall not be liable to Licensee for any specific changes to the features or functionality of the Software and Licensee’s exclusive recourse if it is not satisfied with any update or improvement is to stop using the Software. Nothing herein shall obligate Rownd to provide any maintenance or support for the Software and nothing herein shall be interpreted as granting Licensee a right to receive any upgrades, patches, enhancements, bug fixes, new versions or new releases of the Software. Rownd reserves the right to provide new versions of the Software and/or additional functionality for additional or increased fees.
Intellectual Property. Licensee acknowledges and agrees that the Software is being licensed to Licensee, not sold, and that other than the limited license granted herein, Licensee shall have no right, title or interest in or to the Software. As between Rownd and Licensee, all intellectual property rights, including without limitation, any patent, trademark, trade secret and copyrights in and to the Software, are owned by, and shall remain with Rownd.
Warranty/Limitation of Liability.
(a) Each party represents and warrants to the other that (i) its execution of and performance under this Agreement do not and will not conflict with any other agreement to which the party making the representation is a party, (ii) it is authorized to do business in all jurisdiction(s) in which it has obligations under this Agreement and has obtained all necessary rights, licenses and consents to fully perform under this Agreement. Rownd further represents and warrants that the Software shall, during the Term, materially conform to the documentation relating to the Software, if any, provided by Rownd to Licensee; provided that in the event the Software does not conform to the specified documentation, Licensee’s exclusive remedy shall be to have Rownd repair, modify or replace the Software until it conforms.
(b) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE AND ANY UPDATES, MODIFICATIONS, OR IMPROVEMENTS TO THE SOFTWARE PROVIDED BY ROWND TO LICENSEE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED BY ROWND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SOFTWARE OR THAT THE SOFTWARE WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, OR THAT THE SOFTWARE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS.
(c) Limitation of Liability. IN NO EVENT WILL ROWND BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CLAIMS FOR LOST DATA, LOST REVENUE, LOST PROFITS, DAMAGE TO REPUTATION, OR BUSINESS INTERRUPTION, EVEN IF ROWND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE IS BEING PROVIDED AS A TOOL TO AID LICENSEE BUT LICENSEE REMAINS RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL RESULTS OF THE SOFTWARE AND FOR HOW LICENSEE ELECTS TO USE SUCH RESULTS. IN NO EVENT SHALL ROWND’ TOTAL LIABILITY UNDER ANY CAUSE OF ACTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, EXCEED THE FEES PAID BY LICENSEE FOR THE SOFTWARE IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
(d) Authority. Licensee, and the individual accepting these terms on behalf of Licensee, hereby represents and warrants that it has the full power and authority to accept the terms of this Agreement on behalf of Licensee and that Licensee agrees to be bound by the terms of this Agreement.
(a) Unless earlier terminated as provided herein, the term of this Agreement shall commence on the acceptance of this Agreement by Licensee and continue for an initial period of one (1) month (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional one-year periods (each a “Renewal Term”), unless either party provides advance written notice of its intent not to renew at least fifteen (15) days prior to the end of the then current Term. As used in this Agreement, both the Initial Term and each Renewal Term may be referred to collectively as the “Term”.
(b) Either party may terminate this Agreement, effective immediately: (i) upon mutual consent; (ii) in the event the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of written notice from the non-breaching party setting forth the nature of the material breach; or (iii) in the event the other party submits in writing its inability to pay its debts as they become due; makes a general assignment for the benefit of creditors; institutes proceedings to be adjudicated bankrupt; consents to the filing of a petition of bankruptcy against it; seeks reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization.
(c) Upon termination of this Agreement for any reason, Licensee shall immediately discontinue all use of the Software. Thereafter, Licensee shall have no further right, license or privilege to access, or use the Software. Those portions of the Agreement that must survive termination in order to give effect to its essential purpose, will survive termination of this Agreement.
(a) Rownd Confidential Information. Licensee acknowledges and agrees that it may receive from Rownd certain proprietary, confidential, and/or non-public information pertaining to the Software, Rownd’ other technology, and Rownd’ financial, employment, and/or other business affairs (the “Rownd Confidential Information”). Licensee shall not disclose or publicize the Rownd Confidential Information without Rownd’ prior written consent. Licensee shall use its reasonable efforts (but in no case less than the efforts used to protect its own proprietary information of a similar nature) not to disclose and not to use the Rownd Confidential Information for its own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement. The terms of confidentiality and non-disclosure contained herein shall expire five (5) years from the date of the termination of this Agreement. Rownd Confidential Information shall not include information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of Licensee; (ii) already known to Licensee prior to disclosure pursuant to this Agreement; or (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others. Notwithstanding the foregoing, Licensee may disclose Rownd Confidential Information as required by applicable law or by proper legal or governmental authority provided Licensee gives Rownd prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperates with Rownd in any effort to seek a protective order or otherwise to contest such required disclosure.
(b) Licensee Confidential Information. Rownd acknowledges and agrees that it may receive from Licensee certain proprietary, confidential, and/or non-public information of the Licensee and Licensee’s financial, employment, and/or other business affairs (the “Licensee Confidential Information”). Rownd shall not disclose or publicize the Licensee Confidential Information without Licensee’s prior written consent. Rownd shall use its reasonable efforts (but in no case less than the efforts used to protect its own proprietary information of a similar nature) not to disclose and not to use the Licensee Confidential Information (other than to provide the Software and related services) for its own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement. The terms of confidentiality and non-disclosure contained herein shall expire five (5) years from the date of the termination of this Agreement. Licensee Confidential Information shall not include information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of Rownd; (ii) already known to Rownd prior to disclosure pursuant to this Agreement; or (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others. Notwithstanding the foregoing, Rownd may disclose Licensee Confidential Information as required by applicable law or by proper legal or governmental authority provided Rownd gives Licensee prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperates with Licensee in any effort to seek a protective order or otherwise to contest such required disclosure. Anything herein to the contrary notwithstanding, Licensee acknowledges and agrees that Rownd may use the Licensee Confidential Information on an aggregate and deidentified basis.
Third Party Software. The Software may include certain open-source software, libraries, or tools for which different licensing terms apply. The open-source software is licensed directly to Licensee pursuant to the licenses associated with such software and do not require the distribution or access to the source code of the Software. Licensee shall not remove any proprietary notices, labels, or marks from the Software relating to such open-source software. Licensee will not cause the Software or any derivatives to become subject to, or be interpreted or asserted to be subject to, any additional license obligations with respect to any open-source software. The licensors of all third-party software included with the Software retain ownership rights in such software.
(a) Notices. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested or delivered personally. Unless Rownd is otherwise notified in writing, Licensee’s address for notice purposes shall be Licensee’s address provided to Rownd in registering to access the Software.
(b) Acknowledgement. Accessing or using the Software constitutes acceptance of this Agreement in its entirety. Licensee will confirm this acceptance when Licensee presses the “I Accept” button (or equivalent) in the terms and conditions dialog box presented by the Software or associated website during first use. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications. This Agreement may not be amended or superseded unless agreed in writing by both parties.
(c) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without Rownd’ express written consent. Any attempted assignment in violation of this provision shall be void ab initio. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of North Carolina, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Wake County, North Carolina. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the Sale of Goods.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.