Terms of Use

SOFTWARE AS A SERVICE LICENSE AGREEMENT

This Software as a Service License Agreement (the “License Agreement”) is made by and between Whereoware, LLC (“Whereoware”) and the user. Whereoware and Licensee are each a “Party” and are collectively referred to herein as the “Parties”. By installing or otherwise using Code Perfect, the Portal or Related Materials (each as defined below) Licensee agrees to be bound by the terms of this License Agreement.

  1. Definitions. As used in this License Agreement, the following terms shall have their assigned definitions:
    • “Portal” means the Whereoware Portal provided at pages05.net or CodePerfect.com. All licenses set forth herein shall be limited to the use of Code Perfect through the Portal.
    • “Code Perfect” means that certain software owned by Whereoware and accessed by Licensee through the Portal.
    • “Related Materials” means all of the printed materials and documentation which are now or later supplied to Licensee by Whereoware, its licensors or through the Portal.
  2. Grant of License and Permitted Uses.
    • Licensee acknowledges that Code Perfect and the Portal are owned by Whereoware or its licensors.
    • Subject to Licensee’s payment of the license fees and strict compliance with the terms of this License Agreement, Licensee is granted a limited, non-exclusive and non-transferable right and license to use Code Perfect and the Portal. In addition, Licensee agrees to use reasonable efforts to protect the Portal and Related Materials from unauthorized use, reproduction, distribution or publication.
    • The license set forth herein is for the use of Code Perfect and the Portal during the term set forth in the Whereoware Code Perfect Statement of Work or Subscription Agreement. The license fee, term and other details are set forth in the Whereoware Code Perfect Statement of Work or Subscription Agreement.
  3. Uses Not Permitted. Licensee may not:
    • Create derivative works, which shall include, but shall not be limited to translations, adaptations, arrangements or any other alteration, or make copies of Code Perfect or Related Materials or allow any access to the Portal;
    • Rent, lease, sublicense, redistribute, assign, transfer, time-share or lend Code Perfect, the Portal, Related Materials or any rights under this License Agreement;
    • Alter, decompile, disassemble or reverse-engineer Code Perfect;
    • Make any attempt to unlock or bypass any initialization system or encryption techniques utilized by Code Perfect or the Portal;
    • Attempt to download or copy Code Perfect or the Portal, or either or their object or source code, except as required to properly operate the Code Perfect on the Portal; or
    • Alter, remove, or obscure any proprietary legend, copyright, trademark, patent or other proprietary intellectual property notice contained in or on Code Perfect, the Portal or Related Materials.
  4. Duration. This License Agreement is effective from the Effective Date set forth above and shall continue for a period as set forth in the Whereoware Code Perfect Statement of Work or Subscription Agreement (“Initial Term”). If no date is listed above, the Effective Date shall be the date that the Licensee begins using Code Perfect, the Portal or the Related Materials. Thereafter, this License Agreement shall be automatically renewed for additional one (1) year periods (“Renewal Terms”), until either Party gives written notice of termination to the other Party within ninety (90) days prior to the expiration of the Initial Term or any additional Renewal Term. The rate at renewal shall be as in effect at that time for Whereoware’s renewal customers. If Licensee fails to comply with any provision of this License Agreement, Whereoware may terminate this License Agreement at any time. If Whereoware’s ceases to provide Code Perfect or the Portal or its cost structure significantly changes, Whereoware may terminate this Agreement by providing written notice to Licensee. Upon termination, Licensee must discontinue use of Code Perfect and the Portal and destroy any Related Materials. Any amount due for the Initial Term or any Renewal Term previously due shall remain due and payable after termination.
  5. General. This License Agreement represents the Parties’ entire understanding and agreement regarding Code Perfect, the Portal and Related Materials, and supersedes any prior purchase order, communication, or representation, and may only be modified in a written amendment signed by an authorized Whereoware representative. If any provision of this License Agreement shall be declared unlawful, void or for any reason unenforceable by a court of competent jurisdiction, said provision shall be deemed severable from, and shall in no way affect the validity or enforceability of the remaining provisions.
  6. Relationship to MS Azure and other Third Party Providers. Licensee acknowledges that the Portal is hosted through MS Azure or IBM Soft-Layer and may, in the future, continue to be hosted by a third party. Licensee agrees to abide by the third-party rules and requirements, including, but not limited to, those provided by Whereoware to Licensee from time to time.
  7. Maintenance and Support. Licensee may contact Whereoware with regard to problems with Code Perfect or the Portal and Whereoware will endeavor to repair Code Perfect or the Portal, as applicable. Code Perfect and the Portal are provided as is. Should Licensee request support, Whereoware will provide support at its then current hourly rate. Technical enhancements made to Code Perfect and the Portal will be available to Licensee upon release at no additional charge.
  8. Limited Warranty. Whereoware does not warrant that Licensee’s use of Code Perfect or the Portal will be uninterrupted or that the operation of Code Perfect or the Portal will be error-free or secure. Whereoware’s sole liability for any breach of this warranty shall be that upon notice by Licensee, Whereoware shall either repair Code Perfect, the Portal or terminate this Agreement. THIS IS A LIMITED WARRANTY AND IT IS THE SOLE WARRANTY MADE BY Whereoware. This warranty shall immediately terminate (i) if any modifications are made to Code Perfect, the Portal by Licensee; (ii) if Code Perfect, the Portal or Related Materials are subjected to accident, abuse, or improper use; or (iii) if Licensee violates the terms of this License Agreement. This warranty shall not apply if Code Perfect or the Portal are used on or in conjunction with hardware or software other than that with which Code Perfect or the Portal were designed to be used as described in the Related Materials.
  9. Disclaimer. CODE PERFECT, THE PORTAL AND RELATED MATERIALS ARE PROVIDED “AS IS”. EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, WHEREOWARE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO CODE PERFECT, THE PORTAL OR THE RELATED MATERIALS, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF FURTHER EXAMPLE AND NOT LIMITATION, WHEREOWARE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE ACCURACY, RELIABILITY OR COMPLETENESS OF CODE PERFECT, THE PORTAL AND RELATED MATERIALS. THE ENTIRE RISK AS TO THE USE OF CODE PERFECT, THE PORTAL AND THE RELATED MATERIALS ARE ASSUMED BY LICENSEE. IN NO EVENT SHALL WHEREOWARE BE LIABLE TO LICENSEE OR ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF CODE PERFECT, THE PORTAL OR THE RELATED MATERIALS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY LICENSEE’S USE OF CODE PERFECT, THE PORTAL OR THE RELATED MATERIALS, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE FOREGOING IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INEFFECTIVE OR FOR ANY DIRECT DAMAGES, LICENSEE HEREBY AGREES THAT WHEREOWARE’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH CODE PERFECT, THE PORTAL OR THE RELATED MATERIALS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE) SHALL NOT EXCEED THE LICENSE FEES PAID BY LICENSEE WITH RESPECT TO CODE PERFECT, THE PORTAL AND RELATED MATERIALS AT ISSUE FOR THE PRIOR SIX MONTHS.
  10. Indemnification. Licensee agrees to indemnify, defend, and hold harmless Whereoware and its members, managers, directors, officers, employees, agents, successors and assigns from and against any and all third-party liabilities, claims, demands, losses, damages, costs and expenses (including reasonable attorney’s fees) which may be assessed against or incurred relating to or arising out of: (i) any material breach of this License Agreement by Licensee; or (ii) any negligent, grossly negligent or intentional misconduct or omission by Licensee or Licensee’s directors, officers, employees, agents, successors and assigns in connection with its use of Code Perfect and the Portal.
  11. Acknowledgment. Licensee acknowledges that Licensee has read the sections entitled Limited Warranty and Disclaimer, understands them, and agrees to be bound by their terms and conditions. Licensee also agrees that (i) No oral or written information or advice given by Whereoware, its agents or employees shall in any way increase the scope of this Limited Warranty, and Licensee may not rely on any such information or advice; (ii) This License Agreement is the complete and exclusive statement of agreement between the Parties, and supersedes all proposals or prior agreements, oral or written, and any other communications Licensee may have had prior to purchasing entering into this License Agreement and purchasing Code Perfect, the Portal and Related Materials; (iii) The terms and conditions of this License Agreement shall supersede those set forth in any purchase order where the purchase order conflicts or is inconsistent with or adds to the terms and conditions of this License Agreement, and those superseded purchase order terms and conditions shall be null and void; and (iv) If Licensee’s organization has multiple users using Code Perfect or the Portal, Licensee agrees to assure that copies of this License Agreement are distributed, read and agreed to by each person using Code Perfect, the Portal and Related Materials.
  12. Governing Law. This License Agreement shall be governed by the laws of the Commonwealth of Virginia, United States, excluding its conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. Any actions brought by either Party to this License Agreement shall be brought exclusively in the Federal District Court for the Eastern District of Virginia, or in a state court located in said district, and Licensee consents to venue and the exercise of personal jurisdiction over Licensee by such courts for purposes of this License Agreement.
  13. Government Use. It is acknowledged that Code Perfect, the Portal and Related Materials were developed at private expense and that Code Perfect, the Portal and Related Materials (and any related copyrights, patents and trade secrets therein), remain the sole and exclusive property of Whereoware or its licensors. Use, duplication or disclosure by any government agency, department or instrumentality is subject to the restrictions set forth in this License Agreement and all other applicable laws and regulations that protect Licensor rights in privately developed computer software data. All rights not expressly licensed are reserved under copyright laws of the United States with respect to all portions of the Portal and Related Materials.
  14. Export Controls. Licensee shall not export or allow the export or re-export of Code Perfect, the Portal or any portions thereof without the express written consent of Whereoware and compliance with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including without limitation, the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Export Administration, and, if applicable, relevant foreign laws and regulations.
  15. Copyrights, Trademarks, Patents and other Intellectual Property Rights. All right, title, and interest in and to Code Perfect, the Portal and Related Documents, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein shall remain the property of Whereoware or its licensors. Other than as set forth in this License Agreement, all rights, including but not limited to intellectual property rights, are reserved by Whereoware, and Licensee has no ownership rights to Code Perfect, the Portal or Related Materials. If Licensee breaches this License Agreement in any way that may adversely affect the intellectual property or proprietary rights of Whereoware or its licensors in Code Perfect, the Portal or Related Materials, such a breach may cause irreparable injury to Whereoware, for which monetary damages may not be an adequate remedy. In the event of such a breach, Whereoware shall be entitled to equitable relief in addition to seeking any other available legal or equitable remedy. Under such circumstances, Licensee agrees to reimburse Whereoware the reasonable attorneys’ fees and costs expended in connection with such proceeding.
  16. Force Majeure. Nonperformance of Whereoware under this License Agreement shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, utilities, or contractors, or any other reason where failure to perform is beyond the control and not caused by the gross negligence of Whereoware.
  17. Waiver. A failure by Whereoware to insist upon strict compliance with any provision of this License Agreement in any instance shall not be construed as a waiver of such provision or any other provision.
  18. Section Headings. Section headings are for convenience only and shall not be considered in the interpretation of this License Agreement.
  19. Severability. Should any term or provision of this License Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term or provision shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of this License Agreement shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law, and the Parties shall use their best efforts to substitute for the offending provision new terms having similar economic effect.
  20. Assignment. Licensee may not assign, delegate or otherwise transfer Licensee’s rights and obligations under this License Agreement, whether by agreement, operation of law, or otherwise, without the express prior written consent of Whereoware, and any attempt to assign, delegate or otherwise transfer any of Licensee’s rights or obligations hereunder, without such consent, shall be void.
  21. Remedies. The Parties agree that any breach of this License Agreement would cause irreparable injury for which no adequate remedy at law exists; therefore, the Parties agree that equitable remedies, including without limitation, injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of this License Agreement, in addition to other remedies available to the Parties. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as otherwise provided.
  22. Relationship. Licensor and Licensee are independent contracting parties. This License Agreement shall not constitute the Parties as principal and agent, partners, joint ventures, or employer and employee.

 

MUTUAL NON-DISCLOSURE AGREEMENT

Each party hereto (individually a "Party" and together, the "Parties") has requested and/or will learn from the other party hereto, its subsidiaries or affiliates (collectively, the “Disclosing Party”), from or through the Disclosing Party’s employees, officers, directors, independent contractors, agents or representatives, information, both orally and in writing, concerning the intellectual property and/or business of the Disclosing Party and/or current or potential customers of the Disclosing Party, including, without limitation, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, customer lists, customer addresses, products and services provided to specific customers, sales volumes, customer pricing, equipment specifications, locations and use, network configurations, capacities and capabilities, current or prospective relationship with vendors and independent contractors (including, without limitation, information regarding the types of products and services contracted for and the cost of such products and services to the Disclosing Party), implementation of technology, data and programs, finance, sales, marketing, and development of internet, telecommunication and related technology and services. Such information, in whole or in part, together with analyses, compilations, programs, reports, proposals, studies, or any other documentation, prepared by the Disclosing Party or the other Party (the "Receiving Party"), as the case may be, which contain or otherwise reflect or make reference to such information, whether or not specifically marked as confidential by the Disclosing Party, are hereinafter referred to as "Confidential Information."

All Confidential Information is deemed proprietary to the Disclosing Party. Accordingly, as a condition precedent to entering into discussions, and in connection with any business relationship, whether formal or informal, which is or may be established between the Parties, the Receiving Party hereby agrees, as set forth below, to hold Confidential Information of the Disclosing Party, whether furnished before, on or after the date of this agreement, in the strictest confidence and not to disclose such information to anyone except as otherwise provided for in this agreement.

  1. NON-EXHAUSTIVE DEFINITION OF CONFIDENTIAL INFORMATION; NON-MARKING The Receiving Party hereby agrees that Confidential Information will also include information that is not specifically encompassed in the definition thereof above, but that would reasonably be expected to be considered confidential by the Disclosing Party. Any issue as to the confidentiality expectations of the Disclosing Party regarding particular information shall be submitted to the Disclosing Party for determination. In addition, the Parties hereby agree that although Confidential Information is not required to be marked as such under this agreement, some Confidential Information, which is delivered to the Receiving Party hereunder, may indeed be so marked.
  2. USE OF CONFIDENTIAL INFORMATION THE Receiving Party agrees that the Confidential Information will be used solely for the purpose of evaluating a potential transaction between the Parties and in connection with a business relationship, whether formal or informal, which is or may be established between the Parties, and not for any other purpose, except as otherwise agreed by the Parties in writing.
  3. OWNERSHIP OF CONFIDENTIAL INFORMATION THE Receiving Party acknowledges that the Disclosing Party claims the Confidential Information as its sole and exclusive property (or that the Disclosing Party is a valid licensee of such information) and that the Receiving Party shall not have any right, title, or interest in or to such Confidential Information except as expressly provided in this agreement.
  4. DISCLOSURE OF CONFIDENTIAL INFORMATION THE Receiving Party agrees to hold in the strictest confidence and not to disclose to anyone for any reason Confidential Information of the Disclosing Party; provided, however, that:
    • Such Confidential Information may be disclosed to the officers, directors, employees, agents, or representatives (collectively, "Representatives") of the Receiving Party on a "need to know" basis for the purpose of evaluating a potential transaction between the Parties or in connection with a business relationship, whether formal or informal, which is or may be established between the Parties, on the condition that (i) each such Representative will be informed of the confidential nature of such Confidential Information and will agree to be bound by the terms of this agreement and not to disclose such Confidential Information to any other person and (ii) each Party agrees to accept full responsibility for any breach of this agreement by that Party’s Representatives; and
    • The Receiving Party upon the prior written consent of the Disclosing Party may disclose confidential Information of the Disclosing Party.
  5. DISCLOSURE OF DISCUSSIONS EACH Party agrees not to disclose, and will direct its Representatives not to disclose, to any person that discussions or negotiations are taking place between the Parties unless otherwise required by law or upon the prior written consent of the other Party. This paragraph applies, without limitation, to any use, other than strictly internal use, by a Party of the other Party’s name and marks.
  6. RETURN OF CONFIDENTIAL INFORMATION THE Receiving Party agrees, upon the request of the Disclosing Party, to promptly deliver to the Disclosing Party (or, with the Disclosing Party’s consent, destroy) the originals and all copies of the Disclosing Party’s Confidential Information then in the Receiving Party’s possession or control, including, without limitation, the portion of the Confidential Information that consists of analyses, compilations, programs, reports, proposals, studies, or other documentation prepared by a Receiving Party or its Representatives.
    • Licensee acknowledges that Code Perfect and the Portal are owned by Whereoware or its licensors.
    • Subject to Licensee’s payment of the license fees and strict compliance with the terms of this License Agreement, Licensee is granted a limited, non-exclusive and non-transferable right and license to use Code Perfect and the Portal. In addition, Licensee agrees to use reasonable efforts to protect the Portal and Related Materials from unauthorized use, reproduction, distribution or publication.
    • The license set forth herein is for the use of Code Perfect and the Portal during the term set forth in the Whereoware Code Perfect Statement of Work or Subscription Agreement. The license fee, term and other details are set forth in the Whereoware Code Perfect Statement of Work or Subscription Agreement.
  7. LIMITATIONS ON CONFIDENTIAL INFORMATION THE term "Confidential Information" does not include any information which:
    • Is or becomes generally available to or known by the public (other than as a result of a disclosure directly or indirectly by the Receiving Party);
    • Is independently developed by the Receiving Party without breach of this agreement;
    • Is lawfully received by the Receiving Party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or
    • Is disclosed by the Receiving Party pursuant to judicial action or governmental regulations, provided that the Receiving Party notifies the Disclosing Party prior to such disclosure and the Receiving Party cooperates with the Disclosing Party in the event that the Disclosing Party elects legally to contest and avoid such disclosure.
  8. TERM THE terms and conditions of this agreement shall continue for a period of three years from the date hereof; provided, however, that the Parties agree that the obligations of confidentiality hereunder shall survive such term.
  9. SPECIFIC PERFORMANCE THE Parties acknowledge and agree that the rights being protected by the terms of this agreement are of a special, unique, unusual and extraordinary character, which gives them a particular value, and that the breach of any provision of this agreement shall cause irreparable injury and damage to the nonbreaching Party. In such event, the nonbreaching Party shall be entitled to require specific performance of all of the acts and the undertakings required of the breaching Party hereunder and to obtain injunctive and other equitable relief in any court of competent jurisdiction to prevent the violation or threatened violation of any of the provisions of this agreement. Neither this paragraph 9 nor any exercise by the nonbreaching Party of its right to equitable relief or specific performance herein granted shall constitute a waiver by the nonbreaching Party of any other rights which it may have to damages or other relief.
  10. ENFORCEABILITY IF any of the provisions contained in this agreement is held to be unenforceable, in whole or in part, by a court of competent jurisdiction; the Parties agree to be bound by all other provisions of this agreement.
  11. SUCCESSORS THE Parties agree that this agreement shall be binding upon the successors and assigns of such Party and shall inure to the benefit of, and be enforceable by, such successors and assigns, and any officers or directors thereof.
  12. WAIVER THE Parties agree that a Party’s failure at any time to require performance of any provision of this agreement shall in no way affect such Party's right at a later time to enforce the same. No waiver by a Party of a breach of a term contained in this agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of such breach of any other term of this agreement.