End User License Agreement

This End User License Agreement was last updated on May 26, 2017.

Terms and Conditions

1.              Software License, Term and Restrictions.  Subject to the terms of this Agreement, Waterline hereby grants you a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the Software described on Exhibit B hereto (and/or in the Waterline Quote) and related documentation that has been made available to Customer only for Customer’s internal business purposes and only in accordance with the related documentation during the applicable subscription license initial Term set forth above.  License of the Software, unless otherwise agreed in writing with Waterline, is a subscription license for a fixed time period. The Term shall automatically renew for additional one (1) year periods, based on Waterline’s submission of an invoice for the renewal Term at its then-current fees, unless either party provides the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.  The initial license subscription term plus the renewal subscription term(s), if any, constitutes the “Term.” Except as expressly permitted by this Agreement, Customer shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing restriction on decompilation is expressly prohibited or limited by applicable local law, and then only to the extent so prohibited or limited); (iii) rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software on behalf of any third party; or (iv) use the Software for performing comparisons or other “benchmarking” activities, either alone or in connection with any other software (and Customer agrees not to publish or disclose any such performance information or comparisons). However, the foregoing is not intended to limit the terms of any applicable open source license that may apply to any portion or component of the Software. Customer shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Waterline and its suppliers or licensors. Customer understands that Waterline may modify or discontinue offering the Software at any time. The Software is protected by the copyright laws of the United States and international copyright treaties, and this Agreement does not grant Customer any rights not expressly granted herein.

2.               Support Provision. Subject to the terms hereof (including payment of all applicable fees), Waterline agrees to use reasonable commercial efforts to provide Customer the Support designated on the cover page hereto in accordance with the terms of Exhibit A hereto.  Customer will fully cooperate with Waterline in connection with the Support, including, without limitation, by providing Waterline reasonable access to its premises, equipment and Waterline Software in connection therewith.  Further, Customer will designate appropriately skilled personnel to serve as Waterline’s principal contacts in connection with the use, operation and support of the Software.  Customer understands that Waterline’s performance of Support is dependent in part on Customer’s cooperation, actions and performance (including fulfillment of the requirements and obligations of Customer set forth in the applicable Exhibits hereto).  Accordingly, any time periods relevant to performance of Support by Waterline shall be appropriately and equitably extended to account for any delays due to Customer.

3.               Fees and Payment; Order.  All payments due hereunder shall be paid to Waterline in U.S. dollars not later than thirty (30) days following the date of the applicable invoice, unless otherwise set forth on the cover page hereto. All payments are non-refundable. Any payments over 30 days overdue will bear a late payment fee at the lower of 1.5% per month or the maximum rate allowed by law.  In addition, Customer will pay all taxes (including withholding taxes), duties, charges and out-of-pocket disbursements incurred by Waterline in connection with Support, promptly upon invoice. An order is set forth as Exhibit B hereto (“Order”), which establishes the agreed pricing for the Subscription Term, as well as any special comments or conditions relating to the Order.

4.               Termination. This Agreement will begin on the Effective Date and continue in effect for the Term, including any Renewal Terms as described in Section 1.  Upon expiration of the Term without renewal, Customer shall receive no further Support, and must de-install the Software.  Any use of the Software after expiry of the Term is a violation of this Agreement, and also constitutes an unlawful violation of Waterline’s copyright in the Software under applicable law and international treaties.  Either party may terminate this Agreement upon written notice if the other party has materially breached this Agreement, and the party in breach fails to cure such breach within thirty (30) days’ written notice (ten (10) days in the case of non-payment of fees) from the other party, unless such breach is cured within the indicated notice period. Sections 3 – 9 of this Agreement, and all accrued rights to payment, shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.

5.              Warranty and Disclaimer. Waterline hereby warrants to Customer that the Software will function substantially in accordance with its documentation and that all Support shall be performed in a professional and workmanlike manner.  EXCEPT FOR THE FOREGOING, WATERLINE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SOFTWARE OR SUPPORT RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WATERLINE FURTHER DISCLAIMS ANY WARRANTY THAT THE SUPPORT WILL SUCCEED IN RESOLVING ANY PROBLEM, OR THAT ANY WORK PRODUCT OF THE SUPPORT WILL BE FREE FROM PROGRAM ERRORS.

6.              Intellectual Property Indemnification.  Waterline agrees to indemnify, defend and hold Customer harmless from any third party action or claim (“Claim”) asserted against Customer that the Software violates the patent rights of any third party in the United States or in the jurisdiction where Customer is domiciled, or any other intellectual property rights of third party, that arises despite Customer’s proper use of the Software in accordance with this Agreement, provided that: (a) Customer give Waterline prompt written notice of any such Claim; (b) Waterline has the right to control and direct the defense of such Claim; and (c) Customer reasonably cooperates with Waterline in such defense.  Waterline shall have no liability for any Claim of infringement that results from: (a) any modification of the Software by Customer or those under Customer’s control or direction; (b) Customer’s failure to implement updates to the Software as supplied by Waterline as part of its Support services, if the infringement would have been avoided had the update(s) been implemented; (c) the combination, operation, or use of the Software with non-Waterline programs, data or documentation, if such infringement would have been avoided by the use of the Software without such combination, operation or use; (d) any use of the Software that is not expressly permitted under this Agreement; or (e) Customer’s continued use of infringing Software after Waterline, at no additional charge, supplies or offers to supply modified or replacement non-infringing Software as contemplated under clause (a) below. In the event the Software, in Waterline’s opinion, is likely to or does become the subject of a Claim of infringement, Waterline shall have the right at its sole option and expense and as Customer’s sole remedy to: (a) modify the Software to be non-infringing while preserving substantially equivalent functionality; (b) obtain for Customer a license to continue using the Software; or (c) terminate this Agreement and refund to Customer a pro rata portion of the Fees prepaid to Waterline hereunder for that portion of the Term which is beyond the termination date.   THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF WATERLINE, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR CLAIMS OF INFRINGEMENT BY THE SOFTWARE, OR ANY PART THEREOF, OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.

7.               Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR DEATH OR BODILY INJURY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WATERLINE SHALL NOT BE LIABLE UNDER THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE SOFTWARE LICENSE AND APPLICABLE SUPPORT; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

8.               Confidentiality.  Under this Agreement the party disclosing Confidential Information is referred to herein as “Disclosing Party” and the party receiving Confidential Information is referred to as “Receiving Party”.  Confidential Information disclosed by any Affiliate of a party shall be covered by this Agreement.  “Confidential Information” means the Software (both object and source code), the accompanying documentation and all related technical and financial information (including the terms of this Agreement) and any information, technical data or know-how, specifications, source code, object code, research, inventions, processes, designs, drawings, engineering, products, services, customers, markets or finances of Disclosing Party which (i) has been marked as confidential or proprietary; (ii) is identified as confidential at the time of disclosure; or (iii) a reasonable person under like circumstances would understand to be confidential.  Confidential Information shall not include information which (a) Receiving Party can demonstrate was rightfully in its possession, without confidentiality obligations, before receipt; (b) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (c) is disclosed to Receiving Party, without confidentiality obligations, by a third party who has the right to disclose such information; or (d) Receiving Party can demonstrate was independently developed without reliance on any Confidential Information of Disclosing Party.

The parties hereby agree that:  (a) Receiving Party may use Confidential Information solely for the purposes of this Agreement; (b) Receiving Party shall share Confidential Information only with those having a “need to know,” and instruct and require those of its employees, agents, and contractors who have access to the Confidential Information of Disclosing Party to maintain the confidentiality of the Confidential Information; (c) Receiving Party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as Receiving Party would exercise with its own confidential information; and (d) Receiving Party may disclose Disclosing Party’s Confidential Information to the extent required by a valid order by a court or other governmental body or by applicable law, provided, however, that Receiving Party will use all reasonable efforts to notify Disclosing Party of the obligation to make such disclosure in advance of the disclosure so that Disclosing Party will have a reasonable opportunity to object to such disclosure.  Receiving Party’s obligations set forth herein shall also be applicable to Confidential Information disclosed by Disclosing Party to Receiving Party prior to the execution of this Agreement. Receiving Party will return any tangible materials containing Confidential Information, and any copies or reproductions thereof, to Disclosing Party within ten (10) days after Disclosing Party’s written request.  Receiving Party agrees to undertake whatever action is reasonably necessary to remedy any breach of Receiving Party confidentiality obligations set forth herein or any other unauthorized disclosure or use of the Confidential Information by Receiving Party, its employees, its agents, or contractors.  Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information.

9.               Miscellaneous. This Agreement is not assignable or transferable by Customer without the prior written consent of Waterline; any attempt to do so shall be void. Waterline may assign this Agreement in whole or in part, or subcontract the performance of Support to third parties. The parties agree that they are independent contractors and that this Agreement and the relationship between Waterline and Customer hereby established do not constitute a, joint venture, agency or contract of employment between them, or any other similar relationship.  Any notice, report, approval or consent required or permitted hereunder shall be in writing. Customer agrees to serve as a reference and reference site for other prospective customers during the Term of this Agreement. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be determined by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by the laws applicable in the State of California without regard to its conflicts of laws provisions. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all prior and contemporaneous written and oral agreements and communications relating to the subject matter of this Agreement. Any conflicting terms in any related purchase order, confirmation, or similar form even if signed by the parties after the date hereof shall have no force or effect. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action.


EXHIBIT A

Subscription Bundle Support Description

   
Enterprise Support Features Description
Access to latest official release x
Notification of releases x
Community Forums x
Knowledge base x
Documentation x
File support issues x
Guaranteed response time Severity-based response
Guaranteed follow-up Severity-based response
Number of incidents Unlimited
Email support 24 x 7 x 365
Chat support 24 x 7 x 365
Phone support 24 x 7 x 365
Number of contacts 5
Out-of-schedule patch support for severity 1 issues x
Self-service issue tracking x
Enterprise Security (Kerberos) x
Enterprise Integration (APIs) x

 

Support Terms

Response times

  • Initial response time is the interval between when a case is filed, whether through email, online through the support portal, or by phone, and the time the Customer receives an acknowledgment from Waterline.
  • Follow-up response time is the interval between the initial response time and the next follow-up communications from Waterline on an active incident: even if Waterline has not yet resolved the problem, Waterline will follow-up within this interval.
  • Resolution target time is the time between when a case is filed and the case is resolved. The service level for resolution times varies based on the complexity of the problem. While we provide target resolution times in the table below, the resolution time can not be guaranteed due to the open-ended nature of potential problems and the severity of the problem.

 

Severity Levels

  • Severity 1: The case reveals a defect that results in the termination of one or more components of the Software or causes corruption of data. There is no acceptable alternative method to achieve the required results.
  • Severity 2: The case reveals a defect that results in the termination or severely reduced capacity of one or more components of the Software or causes corruption of data. There exists an acceptable alternative method to achieve the required results or the affected Software is not part of a production system.
  • Severity 3: The case reveals a defect that causes the Software to produce incorrect, incomplete, or inconsistent results. The problem impairs some Software functions or causes the Software to produce incorrect, incomplete or inconsistent results but the desired results can be easily obtained by working around the defects.
  • Severity 4: The case involves an information request or description of a minor defect or enhancement that does not affect the expected function of the Software.

 

Response times per Severity level:

  Initial Response Follow-up Resolution Target
Severity 1 1 Hour 4 Business Hours 3 Business Days
Severity 2 2 Hours 1 Business Day 5 Business Days
Severity 3 4 Hours 2 Business Days Maintenance Release
Severity 4 4 Hours 5 Business Days Maintenance Release

 

Contacts per account

  • The number of individuals in the Customer’s organization who are authorized to start Support cases. The named individual can identify a proxy to interact with Waterline through absences.

Business hours, days

  • Business hours are 9:00 AM to 6:00 PM Pacific Time.
  • Business days are Monday through Friday, except for standard U.S / E.U holidays.

 

EXHIBIT B
Order Form

  1. Customer:
    1. Company (Customer) Name:
    2. Company Address:
    3. Contact Name:
    4. Contact Number
  2. Subscription
  • Effective Date: ________________ Term Start Date:__________________
    Term End Date: __________________
    Payment due 30 days from date of Waterline invoice
  • Software Purchase Summary
Qty SKU Term Description Per Unit Fee ($) Total Fee ($)
    __ yr(s)      
    __ yr(s)      
    __ yr(s)      
Total  

 

  1. Key Contacts
Position/Title Name Telephone Email Address
Waterline Accounts Receivable Myoung Kang (650) 946-2104 [email protected]
Customer Accounts Payable      
Customer Software Implementation Mgr/Customer Contact      

 

  1. Special Notes, Comments and/or Conditions (if any)