END USER SOFTWARE LICENSE AGREEMENT
Effective Date December 7, 2020
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE MOBILEVIEW SOFTWARE (THE "SOFTWARE"), THE USE OF WHICH IS LICENSED BY ONE OR MORE LEGAL ENTITIES THAT ARE PART OF STANLEY HEALTHCARE, A BUSINESS UNIT OF STANLEY BLACK & DECKER, INC. (“STANLEY”) TO ITS CUSTOMERS FOR THEIR USE ONLY AS SET FORTH BELOW. BY CLICKING THE "ACCEPT" BUTTON, YOU (EITHER INDIVIDUALLY OR ON BEHALF OF THE ENTITY OR COMPANY THAT YOU REPRESENT) ARE ACCEPTING AND AGREEING TO BE UNCONDITIONALLY BOUND BY THIS AGREEMENT. DOWNLOADING, INSTALLING OR USING THIS SOFTWARE INDICATES THAT YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE AND DO NOT CLICK ON THE "ACCEPT" BUTTON.
IN THE EVENT THAT A SYSTEM INTEGRATOR, CONTRACTOR, OR OTHER PARTY DOWNLOADS THE SOFTWARE FOR YOU, AND/OR USES OR INSTALLS IT ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF AND YOU WILL BE DEEMED TO HAVE ACCEPTED THIS AGREEMENT.
This Agreement governs your use of all Software supplied by STANLEY except to the extent a particular software program is governed by a separate signed agreement with STANLEY, or a separate "click-on" license agreement as part of the installation and/or download process.
LICENSE: Subject to your payment of the license fees set forth in the corresponding Purchase Order(s), STANLEY grants you a nonexclusive, nontransferable, non-sub-licensable perpetual worldwide license to use the Software for your internal use in executable form and as described in the accompanying Documentation (the “Documentation”), subject to the terms and restrictions set forth in this Agreement. You are only permitted to use the Software as permitted by the Documentation, and for the number of tracked units or in accordance with other parameters or limitations set forth in your Purchase Order.
Subject to the other provisions of the Agreement, all the terms and conditions of the Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, permitted assigns and successors-in-title except that:
- the Customer shall have the right to transfer or assign all or any of its rights, obligations or benefits hereunder in whole or in part to any of its Affiliates or to its parent company upon written notice to STANLEY. In the event that such transfer is by way of a novation, STANLEY shall execute any such novation agreement prepared by the Customer and presented to STANLEY so as to give effect to the provisions of this clause;
- any permitted assignee or transferee shall agree in writing to comply with all terms and conditions of the Agreement; and
- any assignment shall not exceed the existing scope of the Agreement.
RESTRICTIONS: You are not permitted to copy, modify, create derivative works of, sell, assign, lease, rent, distribute or sublicense the Software or Documentation or to use the Software or Documentation in a time-sharing arrangement or in any other unauthorized manner nor permit any other party to do any of the foregoing. Further, no license is granted to you in the human readable code of the Software (source code). This Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights with respect to the Software or Documentation. You may not assign or transfer your rights under this Agreement, nor export the Software or Documentation in violation of the law of the United States or that of other countries. You acknowledge that you have the responsibility to obtain any necessary licenses to export, re-export, or import Software or Documentation.
PROPRIETARY NOTICES: You may reproduce 2 (two) copies of the Software and Documentation for backup or archive purposes in support of your use of the Software as permitted hereunder. Each copy of the Software and Documentation must contain STANLEY’s and its licensors’ proprietary rights and copyright notices in the same form as on the original. You agree not to remove, alter, or deface any of the trademarks, trade names, logos, patent or copyright notices or markings, or other legends, or add any other notices, markings, or legends to the Software or Documentation.
NO REVERSE ENGINEERING: You may not derive or attempt to derive the source code of the Software by any means, nor permit any other party to derive or attempt to derive such source code. You may not reverse engineer, decompile, disassemble, or translate the Software or any part hereof. However, if you are a European Union (“EU”) resident, information necessary to achieve interoperability of the Software with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available to you from STANLEY upon written request.
SUPPORT: You may elect to purchase STANLEY support and maintenance services and updates for the Software as described in STANLEY's standard Support and Maintenance Agreement by paying STANLEY the applicable support fees. The term "Software" also applies to any updates, upgrades and bug fixes you receive under the Support Agreement.
OPEN SOURCE SOFTWARE: Certain items of independent code that are included with the Software hereunder are subject to various open source or free software licenses (the “Open Source Software”). The Open Source Software may be updated from time to time by posting to STANLEY's Knowledgebase or by notice to you and is licensed under the terms of their respective end-user licenses. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the applicable end-user license for such Open Source Software. The terms of this Agreement, other than the Disclaimer and the Limitation of Liability, will not apply to the Open Source Software. You also agree not to use any “FOSS” (Free and Open Source Software, as defined below) in such a way that would cause the non-FOSS portions of the Software to be subject to any open source software licensing terms or obligations. "FOSS" means any software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and/or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License, Affero GPL, or Lesser/Library GPL.
TRADE SECRETS; TITLE: You acknowledge and agree that the structure, sequence and organization of the Software are the valuable trade secrets of STANLEY and its licensors. You agree to hold such trade secrets in confidence. You further acknowledge and agree that the Software is licensed and not sold to you and that all ownership of, and title to, the Software and Documentation and all subsequent enhancements, improvements or other modifications or copies thereof, regardless of the form or media are held by STANLEY and its licensors.
TERM AND TERMINATION: You may terminate the licenses and this Agreement at any time by destroying the Software and Documentation together with all copies and any portions thereof in any form. The licenses and this Agreement will also terminate immediately if you fail to comply with any term or condition of this Agreement. Upon such termination you agree to destroy the Software and Documentation, together with all copies and merged portions in any form. The sections entitled, "Restrictions", "No Reverse Engineering", "Open Source Software", "Trade Secrets; Title", "Limited Warranties and Disclaimer", "Limitation of Liability", "Audit" and "Governing Law", as well as provisions which by their nature would survive, shall survive any termination or expiration of the Agreement.
UNITED STATES GOVERNMENT RESTRICTED RIGHTS: The Software and Documentation are “Commercial Items(s)” as defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227-7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
LIMITED WARRANTIES AND DISCLAIMER: STANLEY warrants that for 1 (one) year from the date of registration of the Software, the Software will perform substantially in accordance with the Documentation. The entire liability of STANLEY, and your exclusive remedy, shall be STANLEY's commercially reasonable efforts to correct or replace any Software which does not meet the warranty. Except for the above warranty, the Software and Documentation are licensed to you "as is", without warranty of any kind and STANLEY and its licensors disclaim all warranties, express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, title, and noninfringement of third-party rights, or that the operation of the Software will be uninterrupted or error-free. The above warranty does not apply if the Software: (a) has been modified, except by STANLEY, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by STANLEY, or (c) is licensed for beta, evaluation, testing or demonstration purposes for which STANLEY does not receive payment.
LIMITATION OF LIABILITY: STANLEY and its licensors shall not be liable for any indirect, exemplary, special, consequential, or incidental damages of any kind (including without limitation lost profits, lost revenue or lost data), even if STANLEY or such licensor has been advised of the possibility of such damages. IN ANY EVENT YOU AGREE THAT THE TOTAL LIABILITY OF STANLEY AND ITS LICENSORS TO YOU FOR ALL DAMAGES, LOSSES AND CLAIMS RELATED TO THIS AGREEMENT OR USE OF THE SOFTWARE OR DOCUMENTATION SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE AGGREGATE OF THE AMOUNT PAID BY YOU IN CONNECTION WITH THE SOFTWARE WHICH IS THE SUBJECT OF THE CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE BRINGING OF THE APPLICABLE CLAIM AGAINST STANLEY OR ITS LICENSORS.
AUDIT: Upon reasonable prior notice, STANLEY shall have the right to audit your use of the Software during normal business hours to determine compliance with this Agreement. If the audit reveals use of the Software which is not permitted, including without limitation use with more than the number of permitted tracked units or other parameters or limitations or, then without derogating from STANLEY's rights hereunder, you shall pay STANLEY in accordance with the results and reimburse STANLEY the costs of such audit.
AGGREGATE DATA: The Software has a feature which provides STANLEY with aggregate, anonymous usage data. This feature does not collect any personal identifying information. Nevertheless, if you wish, you may disable this feature.
GOVERNING LAW: Any action related to this Agreement will be governed by New Hampshire law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions, and excluding the United Nations Convention on Contracts for the International Sale of Goods. You irrevocably consent to the exclusive jurisdiction and forum convenience of the courts located in Rockingham County in the State of New Hampshire or the U.S. District Court for the District of New Hampshire in connection with any dispute arising from or related to this Agreement, and you agree to waive any and all objections to the exercise of jurisdiction by such courts and to venue in such courts. Notwithstanding the foregoing, STANLEY shall have the right to apply to any court of competent jurisdiction for injunctive relief.
SEVERABILITY: In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefor.
NOTICES: All notices shall be in writing and sent by first class mail or overnight mail (or courier), or transmitted by facsimile (if confirmed by such mailing), to your address on the Purchase Order, or STANLEY's address indicated below, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to STANLEY shall be sent to 75 Portsmouth Blvd., Suite 220, Portsmouth, NH 03801 Attention: Legal Department.
ENTIRE AGREEMENT; MISCELLANEOUS: This Agreement sets forth the entire understanding and agreement between you and STANLEY and supersedes all prior agreements, whether written or oral, with respect to the Software and Documentation, and may be amended only in a writing signed by both parties. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Except for Licensee's obligation to pay STANLEY, neither party shall be liable for any failure to perform due to causes beyond its reasonable control.