Subscription License Agreement (“Agreement”)
PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION LICENSE AGREEMENT (“SUBSCRIPTION AGREEMENT”) CAREFULLY BEFORE OPENING, DOWNLOADING, OR INSTALLING, THE SOFTWARE COVERED BY THIS AGREEMENT. THEY CONSTITUTE INTELLECTUAL PROPERTY OWNED OR CONTROLLED BY WIIISDOM UK LTD (“LICENSOR”), AND ARE LICENSED (NOT SOLD) TO YOU. IF YOU DOWNLOAD, OPEN, OR INSTALL THE SOFTWARE, OR HAVE PAID THE LICENSE FEE SPECIFIED IN A SUBSCRIPTION QUOTATION FOR THE SOFTWARE THAT LICENSOR SUPPLIED TO YOU, YOU ARE INDICATING THAT YOU HAVE ACCEPTED AND AGREED TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT AND THE SUBSCRIPTION QUOTATION. IF YOU ARE NOT WILLING TO BE SO BOUND, YOU SHOULD STOP USING THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE AND DESTROY ANY COPIES IN ANY FORM. LICENSOR AND YOU ARE COLLECTIVELY REFERRED TO AS THE “PARTIES,” AND EACH INDIVIDUALLY AS A “PARTY.”
1.1 “The Software” or “Software” means the software program and related Documentation covered by this Agreement and known as Wiiisdom Ops.
1.2 “You” or “you” or “your” means the individual or entity seeking to use the Software.
1.3 “Authorised User” means those individuals for whom the applicable license fees have been paid and are authorised by you to install and/or use the Software.
1.4 “Documentation” means the applicable documentation of the technical specifications and any product help provided by Licensor, published on Licensor website or any other domain and updated from time to time.
1.5 “Subscription Quote” means any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement.
2. SOFTWARE PLANS
Licensor makes available the Software through evaluation version (“Evaluation Version”) and paid plans (“Plan”). Your specific Plan will be identified in the Subscription Quote presented when you order or pay the Software. Your permitted scope of use, such as features available, and the number of Authorised Users depends on your selected Plan and will be specified on the applicable Subscription Quote.
3. GRANT OF LICENSE
Licensor hereby grants to you, and you accept, a non-exclusive, non-transferable, license to use the Software in object code form (and not in source code form) only as set forth in this Subscription Agreement.
Licenses are granted on an Authorized User basis and may be reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of a single license between multiple users. The total number of Authorised Users who can use the Software must not exceed the number of licenses purchased.
4. ELECTRONIC DELIVERY
Software shall be delivered by electronic means. Software shall be deemed delivered when it is made available for you to download.
5. PERMITTED USE
This Subscription Agreement authorises you to load the Software into and use it on a single computer which is under your control. If you wish to transfer the Software from one computer to another, you must erase the Software from the first hard drive before you install it onto a second hard drive.
This transaction is a license, not a sale. You receive no title to or ownership of the Software or of any copy, and receive no rights to the Software other than those specifically granted in this Section. Without limiting the generality of the foregoing, you will not:
(i) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software;
(ii) permit third parties to exploit the Software in any manner, for example, as in a service bureau;
(iii) enable access to the Software for a greater number of Authorised Users than the total quantity of licenses purchased or reassign license rights between Authorised Users so frequently as to enable a single license to be shared between multiple users;
(iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’ source code; or
(v) use the Software outside the Licensor license pool specified in the Subscription Quote.
You acknowledge and agree that the Software is proprietary to Licensor. You further acknowledge and agree that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with Licensor.
7. EVALUATION VERSION
If you downloaded the Software from Licensor website and ordered a trial license (“Trial License”) to the Evaluation Version (“Evaluation Version”) of the Software, you may install and use one copy of the Evaluation Version Software solely for the purpose of evaluating the Software to determine whether to purchase a non-Evaluation Version copy of the Software. You may not use the Evaluation Version for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. You may only use the Evaluation Version for fifteen (15) days from the date you activate and/or register the Trial License. Unless you pay the applicable license fee for the Software, the Evaluation Version may become inoperable and, in any event, your right to use the Evaluation Version Software automatically expires at the end of the Evaluation Period. Notwithstanding any other provision of this Agreement, the Evaluation Version Software is provided “as is” without warranty or support of any kind, express or implied.
8. LICENSE FEE
There are no fees associated with the Evaluation License.
Subscription fees are based on the number of Authorised Users as specified in the original subscription price quotation (Quote). You shall pay, in addition to all other amounts owed to Licensor or Authorized Reseller, interest calculated at the rate of one and one-half percent (1.5%) per month, prorated for partial periods, on all amounts that are past due until paid.
If, for any reason, you elect to terminate or fail to renew the annual subscription contract, your access to the software and associated support services including, but not limited to, bug corrections, upgrades, major upgrades, custom support, and technical improvements will be suspended 30 (thirty) days after the end of the subscription period.
If, after terminating or failing to renew the annual subscription contract, you elect to renew the subscription contract within 90 days of the end of the subscription period, you will be subject to any and all fees that would have been due if coverage had continued without interruption in addition to subscription fees for the upcoming period. Renewals will not be allowed more than 90 days after the end of the subscription period, and former Customers will be required to purchase new subscriptions at the going rate.
After the first year of the Term, Licensor may increase subscription fees no more than once per year in an amount not to exceed the lesser of (i) three percent (3%) or (ii) the percentage increase in the Consumer Prices Index (CPI) for the immediately preceding calendar year.
9. INTELLECTUAL PROPERTY
WIIISDOM and 360Suite are trademarks of Licensor. The Software is protected by the U.S. Patent 8,955,148 and other patents pending, and under applicable trade secret and copyright law. No right, license, or interest in such trademarks, patents, trade secrets, copyrights are granted hereunder, and you agree not to assert any such right, license, or interest.
The Software includes software components which are licensed from third parties, including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Subscription Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
10. LIMITED WARRANTY
THE SOFTWARE IS LICENSED “AS IS,” AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT IMMATERIAL INTERRUPTION. LICENSOR PROVIDES NO WARRANTY REGARDING, AND WILL HAVE NO RESPONSIBILITY FOR ANY CLAIM ARISING OUT OF: (I) A MODIFICATION OF THE SOFTWARE MADE BY ANYONE OTHER THAN LICENSOR, UNLESS LICENSOR APPROVES SUCH MODIFICATION IN WRITING; OR (II) USE OF THE SOFTWARE IN COMBINATION WITH ANY OPERATING SYSTEM NOT AUTHORIZED OR WITH UNAUTHORIZED HARDWARE OR SOFTWARE.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL LICENSOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO LICENSOR PURSUANT TO THIS AGREEMENT FOR THE PRIOR TWELVE MONTHS (INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SUBSECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF LICENSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Licensor shall be excused from responsibility for any delay, interruption, error, or malfunction resulting from natural disaster, transportation problems, defects, or malfunctions of third-party software, hardware, or communications; your acts or omissions or other persons not supervised by Licensor; and other acts, events, or circumstances beyond its reasonable control, whether or not foreseeable or identified. If applicable law limits the application of the provisions of this Section 8, Licensor’s liability will be limited to the maximum extent permissible.
12. TERM AND TERMINATION
(a) Term. The Subscription License will remain in effect for as many months as are specified in the Subscription Quote, commencing on the date you pay the fee listed in the Subscription Quote. At the end of the initial Term and each Renewal Term, the License will automatically renew for successive twelve (12) month periods in accordance with the terms of the Subscription Quote (each a “Renewal Term”), unless either party refuses such renewal by written notice to the other party, provided 90 or more days before the end of the then-current term.
(b) Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days unless the other party first cures such breach.
(c) Effects of Termination. Upon termination for cause of this Agreement set forth in section 12(b), the licenses granted herein will terminate and you must cease all use of the Software and delete all copies in its possession or control.
(a) Description of support services relating to the Software:
- HOTLINE. Licensor will provide a hotline associated with the Software, consisting of a website that permits you to open tickets online.
- ERRORS vs BUGS. Licensor will assess Errors and Bugs in the Software. Upon discovery of any Error, you shall promptly use the hotline website to open a ticket and provide Licensor with a comprehensive written description of the Error, as well as such additional information as Licensor may reasonably request to assist with the verification and resolution of the Error.
- An “Error” means a reported and verifiable failure of the Licensed Software that has a significant adverse effect on the Software’ functionality and on your operations.
- But, an Error does not include an effect:
- That does not meet the foregoing standard, or
- That results from changes or additions to the Software or to the operating environment not made or approved by Licensor, from issues caused by your personnel or contractors, or by malfunctions or defects of third-party software, hardware, or operating environment.
- An “Error” means a reported and verifiable failure of the Licensed Software that has a significant adverse effect on the Software’ functionality and on your operations.
- A “Bug” shall be anything that has an adverse effect on the Software’ functionality, but is not significantly adverse to be characterized as an Error.
- ERROR FIX. After you have supplied the foregoing information, if Licensor then verifies the existence of an Error, then Licensor will address the issue in a workmanlike manner, within reasonable industry standards to provide an Error Fix in such time and in such manner as is reasonable in light of the type of nonconformity, and its effect on your installation site operations. For example, if a work-around is available, Licensor will ask you to use that work-around pending any Error Fix.
- BUG FIX. If Licensor verifies the existence of a Bug, Licensor will add it to its list of Bugs that may be addressed with a Bug Fix by its next scheduled Revision or New Release. Also, if a work-around is available, Licensor will ask you to use that work-around pending any Bug Fix.
- REVISIONS AND NEW RELEASES THAT ARE NOT MAJOR UPGRADES. Licensor will supply Revisions and New Releases for the Software that do not constitute Major Upgrades. The timing and content of these is entirely within Licensor’s sole discretion. “Revisions” and “New Releases” mean any work that includes, derives from, or combines some or all of an existing work, including any revision, modification, translation, abridgement, condensation, expansion, or any other form in which such pre-existing work or any part thereof may be recast, transformed, or adapted .
- MAJOR UPGRADES. Licensor will supply New Releases for the Software that do constitute Major Upgrades. The timing and content of these is entirely within Licensor’s sole discretion.
- APPLICABILITY OF SUBSCRIPTION AGREEMENT. This Agreement shall continue to apply to all Error Fixes, Bug Fixes, Revisions, New Releases and Major Upgrades.
(b) Limitations on support:
- Support applies only to Software that has not been modified.
- You must use your support account to submit in writing to the Licensor’s support website (https://support.wiiisdom.com/) all requests for enhancements, bug fixes or error fixes.
- Licensor reserves the right to decide whether or not to undertake development of “Enhancements”, meaning changes or additions to the Software requested by Licensee but outside the scope of this Subscription Agreement. If the Licensor agrees to undertake development of Enhancements, it will use reasonable efforts in the nature of professional services and under a separate written agreement providing for scope, fees, costs and other applicable elements. Enhancements will carry no warranty (other than title) unless expressly agreed in writing by Licensor.
- See also Sections 10 and 11.
Licensor shall provide you with two levels of software support, depending on the version of Tableau in use by you.
If you are using a version of Tableau that still qualifies for technical support (https://www.tableau.com/support/services section Supported Versions), then Software’ support will include:
* Responses to technical questions
* Troubleshooting of technical issues
* Bug fixes
If you are using a version of Tableau that no longer qualifies for technical support, then Software’ support will include:
* Response to technical questions
* Troubleshooting of technical issues, excluding issues caused by an unsupported version of Tableau
* Bug fixes, excluding bugs associated by an unsupported version of Tableau.
- A detailed Scope of Support presentation is available for download on the Licensor support website (https://support.wiiisdom.com/). This presentation explains exactly what is included and what is not included.
14. CONFIDENTIAL INFORMATION
14.1 Parties agree that all any information, including but not limited to any kind of business, financial, commercial or technical information, know-how and data which has been or will be disclosed by the disclosing party (“Disclosing Party”) to the receiving party (“Receiving Party”) in connection with the Software, constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that at the time of disclosure the information has been identified as confidential by the Disclosing Party, or due to the nature of the information or the circumstances surrounding the disclosure, should be known as be confidential by the Receiving Party, acting reasonably. For the avoidance of doubt Confidential Information includes pricing, documentation or technical or performance information disclosed by Licensor, relating to the Software, and the terms of this Agreement.
14.2 Confidential Information may not be distributed, disclosed, or disseminated in any way or form by you to anyone.
14.3 The nondisclosure obligation shall not apply to information that
- was publicly available at the time it was disclosed to the Recipient or which, through no act or omission of the Recipient, becomes publicly available before the Recipient discloses it to a third-party;
- the Recipient already rightfully possessed, without obligation of confidentiality, before the Discloser disclosed it to the Recipient;
- the Recipient rightfully receives without obligation of confidentiality from any unrelated third-party;
- the Recipient develops independently without reliance upon or use of the Confidential Information;
- is disclosed with Discloser’s prior written approval;
- is independently developed by you without the benefit of any of the Confidential Information as evidenced by written documentation; or
- is required to be disclosed by law, regulation or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to Licensor).
Each Party acknowledges that the Confidential Information of the other constitutes the valuable trade secrets of that Party and that any use or disclosure by the Recipient of such Confidential Information in a manner not authorized by this Agreement may cause irreparable harm to the Discloser that could not be fully remedied by monetary damages. Each Party therefore agrees that the other Party may specifically enforce this Agreement and shall be entitled, in addition to any other remedies available to it at law or in equity, to seek such injunctive or other equitable relief as may be necessary or appropriate to prevent such unauthorized use or disclosure without the necessity of proving actual or irreparable damage by reason of any such unauthorized use or disclosure.
15. AUDIT RIGHTS
Licensor may audit your use of the Software on five (5) days’ advance written notice. You will cooperate with the audit, including by providing access to any books, computers, records, or other information that relates or may relate to use of the Software. Such an audit will not unreasonably interfere with your business activities. In the event that an audit reveals unauthorized use of the Software, you will reimburse Licensor for the reasonable cost of the audit, in addition to such other rights and remedies as Licensor may have.
Licensor may process personal data collected via Licensor Programs for the purposes of maintaining and improving Licensor Programs and providing support related to Licensor Programs. Processing may include measuring and analyzing Customer usage of Licensor Programs, and conducting surveys related to Licensor Programs.
17. GOVERNING LAW AND ARBITRATION
This Agreement shall be construed and governed in accordance with the laws of England & Wales without reference to conflict of laws principles. Any controversy, dispute or question between the parties or arising out of, in connection with, or in relation to this Agreement or its interpretation, performance or nonperformance, or any breach thereof shall be determined by arbitration conducted in England.
(a) 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.
(b) Interpretation. In the event of any conflict between the terms of this Agreement and the Subscription Quote, the terms of this Agreement will govern. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. 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. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(c) Survival after termination. The following provisions will survive termination of this Agreement: (i) any of your obligation to pay for services rendered before termination; (ii) Sections 9, 10, 11, and 15 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfil its essential purpose.
(d) Notices. Notices pursuant to this Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, or by certified mail return receipt requested.
(i) For Licensor: Wiiisdom UK LTD
Number 22, Mount Ephraim,
Tunbridge Wells, Kent TN4 8AS
(ii) For you: The address set forth in the Subscription Quote
(e) Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that (i) either party may assign this Agreement to the surviving party in a merger of that party into another entity and (ii) the Licensor may assign the Subscription Agreement to any Subsidiary. 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.
For the purposes of this article “Subsidiary” means a company held at least at 50% plus one share by the Licensor.