PLEASE READ CAREFULLY: THIS END-USER LICENSE AGREEMENT (“LICENSE”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“LICENSEE” OR “YOU”) AND WATCHFUL, INC. (“WATCHFUL”). USE OF THE WATCHFUL ENTERPRISE PLATFORM (AS MORE PARTICULARLY DEFINED BELOW, THE “WATCHFUL ENTERPRISE PLATFORM”) IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS LICENSE AND THE APPLICABLE THIRD-PARTY LICENSES. READ THIS LICENSE CAREFULLY BEFORE YOU CLICK THE “I AGREE” BUTTON BELOW OR EXECUTE A PURCHASE ORDER.
BY CLICKING “I AGREE” BELOW, EXECUTING A PURCHASE ORDER (THE “PURCHASE ORDER”) TO ACCESS AND USE THE WATCHFUL ENTERPRISE PLATFORM, DOWNLOADING, USING, CONFIGURING OR INSTALLING THE WATCHFUL ENTERPRISE PLATFORM, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS LICENSE, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS LICENSE AND THE APPLICABLE THIRD-PARTY LICENSES FOR YOURSELF AND FOR AND ON BEHALF OF YOUR ORGANIZATION, AND ARE DOING SO, (B) YOU AND YOUR ORGANIZATION CAN LEGALLY ENTER INTO THIS LICENSE AND THE APPLICABLE THIRD-PARTY LICENSES AND SATISFY ALL OF THEIR REQUIREMENTS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE ORGANIZATION SHALL BE BOUND BY THESE TERMS AND CONDITIONS AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “I DO NOT AGREE” BUTTON BELOW AND INSTALLATION WILL TERMINATE.
Watchful reserves the right to update and change, at any time and without notice, this End User License Agreement and all documents incorporated by reference. You can find the most recent version of this End User License Agreement at http://www.watchful.io/eula/. Your continued use of the Watchful Enterprise Platform after any such changes constitutes your acceptance of the new End User License Agreement.
IF YOU HAVE ANY QUESTIONS ABOUT THIS LICENSE, PLEASE CONTACT US AT:
1355 Market St #488
San Francisco, CA 94103
This License shall be effective following your execution and submission of this License by clicking the “I AGREE” box at the end of this License or the execution of the applicable Purchase Order for the Watchful Enterprise Platform (the “Effective Date”). In consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
a. “Documentation” means the documentation provided from time to time by Watchful in connection with the Watchful Enterprise Platform.
b. “LicenseeData” means the information, files and data inputted by Licensee or generated by Licensee’s use of the Watchful Enterprise Platform.
c. “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards License (SISL); (vii) the BSD License; (viii) the MIT License and (ix) the Apache License.
d. “Third-Party License” means any of the Third-Party Software Licenses (as defined in Section 4(a)) or Open Source Licenses (as defined in Section 4(b)).
e. “Third-Party Licensor” means the licensor of any Third-Party Software or Open Source Software.
f. “Third-Party Software” means any software or software component, module or package (other than Open Source Software) that contains, or is derived in any manner (in whole or in part) from, any software that is licensed or distributed by a third party.
g. “Watchful Enterprise Platform” means, collectively, (i) the Watchful Software, (ii) any Third-Party Software and/or Open Source Software included within the Watchful Software and (iii) any updates and upgrades provided from time to time by Watchful.
h. “Watchful Software” means the software and other intellectual property developed or created by or on behalf of Watchful (other than any Third-Party Software or Open Source Software) and the Documentation, for which the Licensee has acquired the right to use under the applicable Purchase Order and this License and any updates and upgrades provided from time to time by Watchful.
- Scope. This License applies to the Watchful Enterprise Platform you have licensed from Watchful as a service or a download of the Watchful Enterprise Platform onto a single server, computer, laptop or other similar device in a cloud, data center, or other similar environment for use in a single deployment or as otherwise provided in the applicable Purchase Order. This License is a legal agreement between Watchful and Licensee, as a single entity, that has obtained the right to access and use the Watchful Enterprise Platform and Documentation from Watchful under the terms and conditions of this License.
- License Grant.
a. License. Subject to the terms of this License, Watchful grants to Licensee a limited, non-exclusive, non-transferable and royalty-free license to (i) download the Watchful Enterprise Platform on a single server, computer, laptop or other similar device for use in a single deployment or as otherwise provided in the applicable Purchase Order (the “Device”) and (ii) access and use the Watchful Enterprise Platform on the designated Device. Watchful and its Third-Party Licensors reserve all other rights and licenses in and to the Watchful Enterprise Platform not expressly granted to Licensee under this License.
b. Proprietary Rights Protection.
(i) The Watchful Enterprise Platform, documentation and the associated copyrights and other intellectual property rights are protected by law and international treaties. This License confers no ownership rights to Licensee and is not a sale of any rights in the Watchful Enterprise Platform or the media on which the Watchful Enterprise Platform may be recorded or printed. Licensee does not acquire any rights, express or implied, in the Watchful Enterprise Platform, other than those rights specified in this License. Watchful or its Third-Party Licensors shall own and retain ownership of all right, title, and interest in and to (i) the Watchful Enterprise Platform and any copies, modifications, enhancements, and derivative works thereof; (ii) “”and (ii) all intellectual property rights (including any patents, copyrights and trademarks) embodied within the foregoing subparagraph (i).
(ii) If you choose to provide input, suggestions, comments, feedback, improvement requests or other recommendations regarding the Watchful Enterprise Platform or any of Watchful’s other services or software (collectively, “Feedback”), then you hereby grant to Watchful an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use or otherwise exploit the Feedback without compensation in any manner and for any purpose without restriction.
(iii) Watchful will not have access, directly or indirectly, to any Customer Data and acknowledges that, as between Watchful and Licensee, Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Licensee Data. Notwithstanding the foregoing, Licensee agrees that the Watchful Enterprise Platform may occasionally collect, store, and send aggregated and anonymized system and usage data (e.g., which buttons were pressed, etc.) (collectively, the “Usage Data”) to the Watchful servers solely for the purpose of improving the Watchful Enterprise Platform. The Usage Data does not, and will, not contain any Licensee Data.
c. Restrictions. Licensee shall not:
• copy, modify, adapt, translate create derivative works or improvements or merge copies of the Watchful Enterprise Platform or the Documents except as specifically provided in this License
• translate, reverse engineer, de-compile or disassemble the Watchful Enterprise Platform, except to the extent that applicable law explicitly prohibits this contractual restriction
• alter in any way any configuration file, including spinning-up more copies than purchased under the applicable Purchase Order
• attempt in any way to access Watchful’s binaries after this License has terminated or otherwise in violation of the terms and conditions of this License or applicable law
• defeat, circumvent or disable any copy protection mechanism or mechanism in the Watchful Enterprise Platform used to limit license duration or access to non-licensed functionality or capacity
• install, use, access, display and run the Watchful Enterprise Platform except in the manner in which it has been licensed as indicated herein and in the applicable Purchase Order, quote or the license file for the Watchful Enterprise Platform, including but not limited to any restrictions on the number of deployments, number of authorized copies or instances, number of users, bandwidth, non-production use, database or location restrictions
• rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Watchful Enterprise Platform to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service
• transfer the Watchful Enterprise Platform that is in a licensed hosted environment out of any such environment
• delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Watchful and/or its Third-Party Licensors appearing on any Watchful Enterprise Platform or any other Watchful software or products. Licensee will reproduce such notices on all authorized copies it makes of the Watchful Enterprise Platform
• access or use the Watchful Enterprise Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other rights of any third party, or that violates any applicable law
• access or use any Third-Party Software or Open Source Software as standalone software and/or except as otherwise provided in accordance with the applicable Third-Party License
d. Audit Rights. During the term of this License and for three (3) years thereafter (or for so long as required by law), Licensee shall keep commercially reasonable records relating to its use of the Watchful Enterprise Platform and its compliance with the License and the applicable Third-Party Licenses. During the term of this License and for three (3) years thereafter, Watchful reserves the right (i) to audit Licensee’s use of the Watchful Enterprise Platform or authorize others to conduct such an audit on its behalf upon reasonable notice and during normal business hours and (ii) to disable any application or functionality that has not been specifically licensed, in addition to any other rights and remedies available to Watchful. Watchful may not audit Licensee’s records more than often once every twelve (12) months unless the previous audit revealed that Licensee was not in breach of the License or the applicable Third-Party Licenses
- Third-Party and Open Source Software.
a. Licensee hereby acknowledges that the Watchful Enterprise Platform may utilize or include Third-Party Software that must be licensed under the specific license terms applicable to such Third-Party Software. Acknowledgements, licensing terms, copyright notices, disclaimers and other terms applicable to such Third-Party Software (the “Third-Party Software Licenses”) are available at www.watchful.io/ossl. Licensee (i) acknowledges that any such Third-Party Software License is solely between Licensee and the applicable Third-Party Licensor of the Third-Party Software and (ii) agrees to bound by, and shall comply with, the terms of any such applicable Third-Party License. If Licensee does not agree to the terms and conditions of any Third-Party Software License, Licensee shall not access and use the Watchful Enterprise Platform.
b. Licensee hereby acknowledges that the Watchful Enterprise Platform may also utilize or include Open Source Software that must be licensed under the specific license terms applicable to such Open Source Software. Acknowledgements, licensing terms, copyright notices and disclaimers for such Open Source Software (the “Open Source Licenses”) are available at www.watchful.io/ossl/. Licensee agrees to review any such Open Source Licenses and other related documentation in order to determine which portions of the Watchful Enterprise Platform are Open Source Software and are licensed under an Open Source License. To the extent that any such Open Source License requires that Watchful provide Licensee the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Licensee in this License, then such rights in the applicable Open Source License shall take precedence over the rights and restrictions granted in this License, but solely with respect to such Open Source Software. Licensee (i) acknowledges that any such Open Source License is solely between Licensee and the applicable Third-Party Licensor of the Open Source Software and (ii) agrees to bound by, and shall comply with, the terms of any such applicable Open Source License. If Licensee does not agree to the terms and conditions of any Open Source Software License, Licensee shall not access and use the Watchful Enterprise Platform.
Open Source Software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Where the terms of an Open Source License entitle Licensee to the source code of any such Open Source Software, such source code is available under the terms of the applicable Open Source License by contacting Watchful at the address above and identifying the specific Open Source Software for which Licensee wants the source code.
- Payment and Taxes.
In consideration for the rights granted under the License and your subscription for the access and use of the Watchful Enterprise Platform and any Professional Services, you agree to pay all fees specified in the applicable Purchase Order.
Subscription fees for the Initial Subscription Term are due on the Order Effective Date and are overdue if not paid within 30 days of receipt of the invoice. If you renew your subscription, the fees for the renewal are due on receipt of the invoice and are overdue if not paid within 30 days of the receipt of the invoice; provided, that if Watchful issues an invoice for a renewal more than 30 days prior to the first day of the renewal, the invoice is not overdue until the first day of the renewal Subscription Term. Fees for Professional Services are due at the time stated in the applicable Order or Statement of Work, or if no time is stated, 30 days from receipt of the applicable invoice.
ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE APPLICABLE PURCHASE ORDER OR REQUIRED BY LAW.
- Technical Support.
Technical support includes assistance to you in connection with your use of the Watchful Enterprise Platform, and updates to the Watchful Enterprise Platform software to fix bugs, correct errors, or enhance functionality that Watchful releases on a generally available commercial basis to all subscribers of the Watchful Enterprise Platform without additional charge (as modified from time to time, collectively “Technical Support”). Any such Technical Support is limited to correcting errors, bugs or other issues with the Watchful Enterprise Platform and does not extend to any Third-Party Software or Open Source Software or technologies you use with the Watchful Enterprise Platform, any issues arising from modifications to the Watchful Enterprise Platform not made or authorized by Watchful, or the use of the Watchful Enterprise Platform other than as authorized by this License.
Technical Support shall be provided via email at email@example.com or through Watchful’s Slack account at watchfulio.slack.com between the hours of 9:00 am and 5:00 pm PST Monday to Friday, excluding all state and federal holidays.
- Notice to U.S. Government End Users. The Watchful Enterprise Platform and Documentation qualify as commercial items as that term is defined at Federal Acquisition Regulation (FAR) (48 C.F.R.) 2.101, consisting of commercial computer software and commercial computer software documentation as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this End User License Agreement may be incorporated, Licensee may provide to Government end user or, if this License is direct, Government end user will acquire, the Watchful Enterprise Platform and Documentation with only those rights set forth in this End User License Agreement. Use of either the Watchful Enterprise Platform or Documentation or both constitutes agreement by the Government that the Watchful Enterprise Platform and Documentation are commercial computer software and documentation and constitutes acceptance of the rights and restrictions herein.
- DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN THE APPLICABLE PURCHASE ORDER OR THIS LICENSE, THE WATCHFUL ENTERPRISE PLATFORM (INCLUDING ANY THIRD-PARTY SOFTWARE AND OPEN SOURCE SOFTWARE) AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” WATCHFUL AND ITS THIRD-PARTY LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, ARISING, WITH RESPECT TO THE WATCHFUL ENTERPRISE PLATFORM, SPECIFICATIONS, OR DOCUMENTATION DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO WARRANTIES THAT THEY ARE FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THE WARRANTY OF MERCHANTABILITY, WARRANTY OF NON-INFRINGEMENT OR TITLE AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WATCHFUL MAKES NO WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE LICENSEE DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE WATCHFUL ENTERPRISE PLATFORM. WATCHFUL AND ITS THIRD-PARTY LICENSORS DO NOT WARRANT THAT THE FUNCTIONALITY OF THE WATCHFUL ENTERPRISE PLATFORM OR THE PROFESSIONAL SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR THAT ERRORS WILL BE CORRECTED, NOR DO THEY WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WATCHFUL ENTERPRISE PLATFORM. WATCHFUL HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS PROVIDED ABOVE OR TO OTHERWISE MODIFY THE TERMS OF THIS LICENSE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
- LIMITATION OF LIABILITY. THE COLLECTIVE AGGREGATE LIABILITY OF WATCHFUL AND ITS THIRD-PARTY LICENSORS IN CONNECTION WITH (A) THE APPLICABLE PURCHASE ORDER, THIS LICENSE AND THE WATCHFUL ENTERPRISE PLATFORM WILL BE LIMITED TO THE SUBSCRIPTION FEES PAID TO WATCHFUL TO ACCESS AND USE THE WATCHFUL ENTERPRISE PLATFORM DURING THE TWELVE (12) MONTH PRECEDING THE DATE OF THE CLAIM AND (B) THE APPLICABLE PURCHASE ORDER AND THE PROFESSIONAL SERVICES WILL BE LIMITED TO THE FEES PAID TO WATCHFUL FOR THE RELATED PROFESSIONAL SERVICES DURING THE TWELVE (12) MONTH PRECEDING THE DATE OF THE CLAIM DURING THE TWELVE (12) MONTH PRECEDING THE DATE OF THE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WATCHFUL AND ITS THIRD-PARTY LICENSORS WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE APPLICABLE PURCHASE ORDER, THIS LICENSE OR THE WATCHFUL ENTERPRISE PLATFORM OR OTHER GOODS OR SERVICES FURNISHED TO LICENSEE BY WATCHFUL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, WATCHFUL’S THIRD-PARTY LICENSORS WILL NOT HAVE ANY LIABILITY FOR ANY DIRECT DAMAGES OF ANY KIND UNDER THIS LICENSE. THE LIMITATIONS CONTAINED IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS SECTION.
THE PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 ARE A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES, AND, ABSENT SUCH ALLOCATION, WATCHFUL WOULD NOT BE ABLE TO PROVIDE ACCESS AND USE OF THE WATCHFUL ENTERPRISE PLATFORM ON THE TERMS SET FORTH HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
(a) Confidential Information. In connection with a Purchase Order or this License, each party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. Subject to Section 10(b), “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that: (i) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary”; (ii) if disclosed orally or in other intangible form or medium, is identified by the Disclosing Party as confidential or proprietary when disclosed; or (iii) due to the nature of its subject matter or the circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary. Without limiting any of the foregoing, the Purchase Orders and all information concerning the Watchful Enterprise Platform that is not customarily and publicly available to an end user through use of the Watchful Enterprise Platform is Watchful’s Confidential Information.
(b) Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
(c) Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the term of this License and for five (5) years thereafter:
(i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(ii) except as may be permitted under the terms and conditions of Section 10(d), not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10;
(III) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
(iv) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
(v) ensure its Representatives’ compliance with, and be responsible and liable for, any of its Representatives’ non-compliance with, the terms of this Section 10.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 10 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
(d) Compelled Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to a valid order issued by a court or government agency or as otherwise required by law, provided that (a) the receiving Party provides the disclosing Party with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) the receiving Party only discloses such Confidential Information as is required to comply with such order or law (as advised by competent counsel) and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Section 10.
- Term and Termination.
a. The License is effective until canceled or terminated in accordance with this Section 11.
b. Termination for Breach. The License will automatically terminate if Licensee breaches any of the terms and conditions of this License, including any payment breach.
c. Termination for Convenience. This License may be terminated at any time by Licensee by returning or destroying all copies of the Watchful Enterprise Platform, any related written materials and Documentation, as certified in writing by an officer of Licensee and by notifying Watchful in writing of its termination of the License.
d. Effects of Termination. In the event of termination of the License, Licensee shall immediately cease use of the Watchful Enterprise Platform and destroy or return immediately the Watchful Enterprise Platform and the Documentation and all copies thereof to Watchful as certified in writing by an officer of Licensee.
e. Survival. Upon the termination of this License for any reason, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections 1, 3(b), 3(d), 4, 8, 9, 10, 11(d), 11(e), 12 and 13 shall survive any such termination.
Licensee agrees to indemnify, save, and hold Watchful, its Third-Party Licensors, affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Licensee’s use or misuse of the Watchful Enterprise Platform, any violation by Licensee of this License or any breach of the representations, warranties, and covenants made by Licensee herein. Watchful reserves the right, at Licensee’s expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify Watchful, and Licensee agrees to cooperate with Watchful’s defense of these claims. Watchful will use reasonable efforts to notify Licensee of any such claim, action, or proceeding upon becoming aware of it.
a. Governing Law; Dispute Resolution. This License will be governed by the laws of the State of California, USA without regard to its conflict of law rules. The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply and the parties specifically opt out of the application of such laws. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to any claim or otherwise in connection with this License, the Watchful Enterprise Platform or any Professional Services (a “Dispute”). In the event of any Dispute arising out of or relating to this License, the parties shall seek to settle the Dispute via direct discussions. If a Dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the Dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The mediation shall be held in San Francisco, California. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any Dispute that remains unresolved following mediation shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Mediation Procedures. The place of arbitration shall be San Francisco, California. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party all of its Costs and Fees. “Costs and Fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of California.
Notwithstanding the foregoing, each party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Sections 3(a), 3(b)(i), 3.b(iii), 3(c) and 10 would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such party of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to that monetary damages will not afford an adequate remedy.
b. Enforceability. Any provisions found to be unenforceable will not affect the enforceability of the other provisions contained herein, but will instead be replaced with a provision as similar in intent to the original as possible.
c. Export Restrictions. The Watchful Enterprise Platform and related information may be subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in other countries. Licensee shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of the Watchful Enterprise Platform. Licensee shall hold harmless and indemnify Watchful for any damages resulting from a breach of this Section 13(c).
d. Force Majeure. The obligations of a party (other than payment) will be suspended by the occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance impossible including, acts of God, pandemic, war, fire, flood, accident, strike, casualty, power failures, governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials. The party invoking force majeure shall (a) send written notice thereof to the other within a reasonable time after the invoking party knew or should have known that performance would be delayed or prevented due to the force majeure and (b) take reasonable steps to limit the duration and effect of any such force majeure.
e. Waiver. The failure of a party to claim a breach of any term of this License shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
f. Assignment. Licensee shall not assign (by operation of law or otherwise) this License or any of its rights or obligations hereunder without the prior written consent of Watchful, and any such prohibited assignment shall be null and void. Watchful may assign this License or any of its rights or obligations hereunder without the prior written consent of Licensee.
g. Severability. In the event that any provision of this License is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this License, such invalidity, voidability or unenforceability shall not affect the validity of this License nor the remaining provisions hereof.
h. Third-Party Beneficiaries. Licensee hereby acknowledges that there are third-party beneficiaries to this License. To the extent that this License contains provisions that relate to the Watchful Enterprise Platform in which such third parties have an interest, including the Third-Party Licensors, such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by Watchful.
i. Entire Agreement; Modifications. This License together with the applicable Purchase Order constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written.