Clickwrap Software Licensing Agreement
READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.
THE LICENSED SOFTWARE (HEREINAFTER DEFINED), OR FEATURES THEREOF, IS BEING PROVIDED UNDER THIS AGREEMENT IN A BETA, TRIAL, PROOF OF CONCEPT, OR SIMILAR VERSION (COLLECTIVELY, THE “BETA VERSIONS”). YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF BETA VERSIONS IS AT YOUR OWN RISK, AND THAT BETA VERSIONS ARE (I) MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, (II) MAY BE DISCONTINUED OR MODIFIED AT ANY TIME, AND (III) MAY BE SUBJECT TO OTHER TERMS. BETA VERSIONS ARE NOT FOR PRODUCTION USE, NOT SUPPORTED BY LICENSOR, AND NOT SUBJECT TO AVAILABILITY OR SECURITY OBLIGATIONS ON THE PART OF LICENSOR. LICENSOR WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH BETA VERSIONS.
Please contact us at (616) 219-0509 or support@webai.com for any queries.
“You” or “Your” means the individual who is identified in the order form filled out and submitted by or on behalf of You, and accepted by Us, as being licensed to use the Licensed Software. “Licensor”, “We”, “Our”, and “Us” means webAI Inc.
NOW, in consideration of Us providing the Licensed Software to You, You agree as follows:
1. Definitions
1.1 Definitions. Capitalized terms in this Agreement will have the following meanings:
- “Agreement” means this Software License Agreement between Us and You.
- “Licensed Software” means certain commercial software products being provided to You under this Agreement, including executable program modules thereof as well as related documentation.
- “Third Party Content” means all software, data, text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Us that You may access through, within, or in conjunction with Your use of, the Licensed Software. Third Party Content includes third-party sourced materials accessed or obtained by Your use of the Licensed Software or any tools provided by Us.
2. Software License, Rights & Restrictions
2.1 Software License and Rights. In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a limited, non-sublicensable, non-transferable, non-exclusive, revocable license to use the Licensed Software solely to meet Your internal business needs. For clarity, the foregoing license does not give You a right to use anything created by or with the Licensed Software. A separate license shall be negotiated between You and Us for Your use of the Licensed Software for anything other than Your internal business purposes.
2.2 Restrictions. Without limiting the generality of the foregoing, You will use the Licensed Software only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:
- own title, or transfer title to the Licensed Software to You or another party;
- distribute, or sublicense or otherwise provide copies of or any rights in relation to the Licensed Software to any third party;
- pledge, hypothecate, alienate or otherwise encumber the Licensed Software to any third party;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; or
- modify, enhance, reverse-engineer, decompile, disassemble or create derivative works of the Licensed Software
2.3 Enforcement of Restrictions. We have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions. The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software. You acknowledge and agree that: (a) We may use these and other lawful measures to verify Your compliance with the terms of this Agreement and enforce Our rights, including all intellectual property rights, in and to the Licensed Software; (b) We may deny any individual access to and/or use of the Licensed Software if We, in Our sole discretion, believe that person's use of the Licensed Software would violate any provision of this Agreement; and (c) We, Our Affiliates, and/or Our or their representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Your computers, systems and software, that We may gather periodically to improve the performance of the Licensed Software or develop maintenance releases.
2.4 Our Obligations. Upon execution of this Agreement, We will:
- permit You to use the most current version of the Licensed Software for Your use in accordance with this Agreement; and
- provide You with ongoing updates to the Licensed Software as We may consider needed.
2.5 You may have access to Third Party Content through use of the Licensed Software. All ownership and intellectual property rights in and to Third Party Content and the use of such content is governed by separate third party terms between You and the third party.
2.6 Our Privacy Policy (https://www.webai.com/privacy) governs how we collect, use and disclose information from the Licensed Software.
3. Copyright and Marks
3.1 Copyright. The Licensed Software, including any corresponding documentation, media, packaging and illustrations, is copyrighted or copyrightable and constitutes Our intellectual property. You agree that, as appropriate, all manifestations of the Licensed Software will display Our copyright notice in a conspicuous manner. The Licensed Software is protected under all copyright laws and international treaty provisions. Notwithstanding anything stated herein, You will not gain any rights whatsoever in any such copyrighted materials, including but not limited to the graphical interface and user experience of the Licensed Software. As such, no part of its UI or UX may be reproduced, distributed, or transmitted in any form or by any means, including using photocopying, recording, or other electronic or mechanical methods, without Our prior written permission. Such copyright covers elements including but not limited to the visual design, layout, and overall user experience of the Licensed Software. Additionally, the trade dress of the Licensed Software’s graphical interface and user experience, including the color combinations, layout, and overall design, is Our intellectual property and is protected by law. Any unauthorized use of this trade dress shall be considered a violation of Our intellectual property rights and may result in legal action.
3.2 Trademarks. Certain logos, product names, and trade-marks owned by Us may be contained within the Licensed Software and its associated printed materials and electronic manifestations. You will have no right to use such marks for any purpose.
4. Title
4.1 Licensed Software. You acknowledge that the Licensed Software, including any associated written materials and other documentation provided under this Agreement, belongs exclusively to Us. Unencumbered title to the Licensed Software will, at all times, remain with Us. You agree to protect the Licensed Software from unauthorized use, reproduction, distribution or publication in electronic or physical form.
4.2 Data and Feedback. We may, in Our sole discretion, utilize, all data and feedback (collectively, the “Data”), whether written or oral, furnished by You in connection with Your access to and use of the Licensed Software. You hereby grant to Us a perpetual, irrevocable, non-exclusive license to use all such Data.
5. Third Party Content, Services And Websites
5.1. The Licensed Software may enable You to link to, transfer Your content or Third Party Content to, or otherwise access, third parties’ websites, platforms, content, products, services, and information (“Third Party Services”). We do not control and are not responsible for Third Party Content or Third Party Services. You are solely responsible for complying with the terms of access and use of Third Party Content and Third Party Services, and if we access or use any Third Party Services, at Your written request and on Your behalf, to facilitate performance of the Licensed Software, You are solely responsible for ensuring that such access and use, including through passwords, credentials or tokens issued or otherwise made available to You, is authorized by the terms of access and use for such services, including, without limitation, the Meta Llama 3 Community License Agreement, the current version of which is found at https://llama.meta.com/llama3/license/. If You transfer or cause the transfer of Your content or Third Party Content from the Licensed Software to a Third Party Service or other location, that transfer constitutes a distribution by You and not by Us.
5.2. Any Third Party Content we make accessible is provided on an “as-is” and “as available” basis without any warranty of any kind. We disclaim all liabilities arising from or related to Third Party Content.
5.3. You acknowledge that: (a) the nature, type, quality and availability of Third Party Content may change at any time during the term of this Agreement, and (b) features of the Licensed Software that interoperate with Third Party Services, depend on the continuing availability of such third parties’ respective application programming interfaces (APIs). We may need to update, change or modify the Licensed Software under this Agreement as a result of a change in, or unavailability of, such Third Party Content, Third Party Services or APIs. Any change to Third Party Content, Third Party Services or APIs, including their unavailability, during the term of this Agreement does not affect Your obligations under this Agreement or the applicable order, and You will not be entitled to any refund, credit or other compensation due to any such changes.
6. Warranty and Indemnity
6.1 Warranty. We warrant that We are the owner of the Licensed Software, and have the right and authority to grant the license to the Licensed Software. We do not warrant, guarantee, accept any condition or make any representation that the Licensed Software will meet Your requirements or that the use of the Licensed Software will be uninterrupted or error-free. No other verbal or written information provided by Us will create a warranty or in any way increase Our liability, and You will not rely on such information.
You represent and warrant that You are the owner of any data You upload or input into the Licensed Software, and exercise of Our rights to access and use that data will not infringe on any rights of a third-party.
Each of You and Us represents and warrants that it is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, and that it has all required corporate power and authority to execute, deliver, and perform its obligations under the Agreement.
6.2 Indemnity. You will and hereby do agree to indemnify and hold Us and Our Affiliates, Our and their employees, contractors, directors, officers, and principals (partners, shareholders or holders of an ownership interest, as the case may be), harmless in respect of any losses, costs, damages or expenses (including reasonable attorney’s fees and court costs) arising out of any claim, demand or action brought against Us for Your use of the Licensed Software.
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED, THE LICENSED SOFTWARE IS PROVIDED "AS IS," AND THERE ARE NO OTHER WARRANTIES. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES, OR ACCEPT ANY CONDITIONS. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME PROVINCES DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS. THEREFORE, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THE LICENSED SOFTWARE PERFORMANCE WILL VARY BASED ON THE HARDWARE AND/OR OPERATING SYSTEM ON WHICH IT IS DEPLOYED AND WE ARE NOT AND CANNOT BE HELD RESPONSIBLE FOR ANY ASSOCIATED VARIANCE IN THE PERFORMANCE OF THE LICENSED SOFTWARE.
7. Limitation of Liability and Remedies
7.1 LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, WHETHER DIRECT, INDIRECT,INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS,LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE LICENSED SOFTWARE REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE PAYMENTS MADE BY YOU WITHIN TWELVE (12) MONTHS PRIOR TO THE CLAIM.
7.2 Dispute Resolution. You acknowledge that We possess valuable confidential and proprietary information, including trade-marks and business practices, which would be damaging to Us if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes between Us and You confidentially, individually, and in an expeditious and inexpensive manner. We and You accordingly acknowledge and agree that private dispute resolution is preferable to court actions. Before commencing any arbitration in the manner set out in Section 7.3 below, We and You shall first attempt to resolve any dispute or differences between the both of us by way of good faith negotiation. The good faith negotiation shall commence by each of Us and You communicating our position regarding the complaint, claim, dispute or controversy to the other party, and how the both of us should resolve the dispute. We and You shall then make good faith efforts to negotiate a resolution of the claim, dispute or controversy.
7.3 ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST US, Our agents, employees, officers, directors, successors, assigns or affiliates (collectively, for purposes of this paragraph, “Licensor Group”) arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitration will be limited solely to the dispute or controversy between You and Us and shall occur in Grand Rapids, MI before a reputable arbitration entity. Any award of the arbitrator(s) shall be final and binding on each of us, and may be entered as a judgment in any court of competent jurisdiction.
8. Fees and Payment
8.1 You shall pay Us all fees for the Licensed Software at our then-current rate prior to accessing the Licensed Software. All fees are payable in U.S. Dollars, non-cancelable, non-refundable, and not subject to setoff.
9. Successors and Assigns
9.1 Successors and Assigns. You may not assign Your rights or duties under this Agreement to any party at any time without Our prior written consent. This Agreement will inure to the benefit of and will be binding on Us and our respective successors and assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party (the “Assignee”), upon written notice to You, provided that We will cause the Assignee to agree in writing to all the terms contained in this Agreement.
10. Upgrades
10.1 Upgrades. Other than our obligation under Section 2.4, We shall have no other obligations to provide upgrades or support services to You. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Us and You. In the absence of such an agreement between Us and You, We will use reasonable efforts to provide ongoing support and remedies to identify errors and defects at Your cost, on a time and material basis, at Our then current commercial rates.
11. Confidentiality
11.1 Confidentiality. You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that You have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). You will use reasonable diligence and in no event less than the degree of care which We use in respect to our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:
- information that is already in the public domain;
- information already known to You, as of the date of the disclosure, unless You agreed to keep such information in confidence at the time of its original receipt;
- information hereafter obtained by You, from a source not otherwise under an obligation of confidentiality with Us;
- information that You are obligated to produce under order of a court of competent jurisdiction, provided that You promptly notify Us of such an event so that We may seek an appropriate protective order.
12. Term
12.1 Term. The term of this Agreement will commence on the date of Your agreement to these terms and shall continue for as long as you use the Licensed Software.
13. GENERAL
13.1 Consents. Any consent required under this Agreement will not be unreasonably withheld.
13.2 Captions. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
13.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties, and no amendment to the terms of this Agreement will be effective unless in writing and signed by both parties hereto.
13.4 Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
13.5 Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
13.6 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
13.7 Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
13.8 Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
13.9 Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission (the “Fax”), with confirmed answer back, or electronic mail, with confirmation of receipt, to Us or You at the respective addresses we provide to each other or to such other address as We or You may from time to time specify by notice to the other given as provided in this paragraph. In Our case, Our contact information is:
35 Oakes SW Suite 500
Grand Rapids MI 49503
(616) 209-8422
support@webai.com
A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13.10 JURISDICTION. THE PARTIES HEREBY IRREVOCABLY ATTORN TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF MICHIGAN WITH RESPECT TO ANY DISPUTE ARISING HEREUNDER.
13.11 GOVERNING LAW. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN, AND SHALL BE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF MICHIGAN.
13.12 Revisions to this Agreement. We may at any time revise the terms of this Agreement by updating these terms and by providing notice to you of that change.