B3 BenchmarkingEND USER LICENSE AGREEMENT
WILLDAN PROVIDES ACCESS TO ITS B3 BENCHMARKING SOFTWARE APPLICATION SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (THE “EULA”). PLEASE READ THE TERMS OF THIS EULA CAREFULLY. AS USED IN THIS EULA, “YOU” OR “YOUR” REFERS TO THE PERSON OR ENTITY USING THE B3 APPLICATION. ADDITIONALLY, WILLDAN AND YOU ARE REFERRED TO COLLECTIVELY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
BY CLICKING THE “AGREE ” BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, CLICK “DISAGREE ” AND YOU WILL NOT BE PROVIDED ACCESS TO THE B3 APPLICATION.
- License Grant. Willdan hereby grants You a limited, non-exclusive, non-transferable, revocable right to access and use the B3 Software Application for use in connection with building energy benchmarking (the “License”). This EULA is effective upon your acceptance as set forth herein and shall continue in full force until terminated by Willdan. Willdan reserves the right, in its sole discretion and without notice, at any time to remove or disable access to all or any portion of the B3 Software Application and terminate this EULA for a violation of this EULA. You acknowledge and agree not to allow others to use your user name and password to access the B3 Benchmarking Application. Willdan shall have an unrestricted the right to use any data collected, generated, or retained in connection with Your use of the B3 Software Application for any purpose. Willdan may from time to time release new versions, updates, and upgrades for Your use under the License.
- Restrictions on Use of B3 Software Application. Except as otherwise authorized in this EULA, You agree not to or allow third-parties to: (i) copy, distribute, reproduce, rent, lend, loan, or sublicense any portion of the B3 Software Application or any documentation related thereto; (ii) translate, adapt, modify, alter, or combine the B3 Software with other software, or prepare derivative works based in whole or in part on the B3 Software Application; (iii) reverse engineer, decompile, disassemble, or otherwise reduce the B3 Software Application to a human-perceivable form; (iv) use the B3 Benchmarking Application in a computer-based services business; or (v) use any data, features, or functionality in the B3 Benchmarking Application as a basis to develop, copy, or reproduce a building energy benchmarking software program.
- Ownership of B3 Software Application. You acknowledge that the B3 Software Application contains proprietary and copyright protected material and, in its human-perceivable form, contains trade secrets and other intellectual property rights exclusively licensed to Willdan. This EULA does not grant You any rights to any patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the B3 Software Application. Your obligations under this Section 3 shall survive the termination of this EULA for any reason. You agree not to remove from view any copyright, trademark, or other proprietary rights notice, mark or legend appearing as part of the B3 Software Application.
- Disclaimer of Warranty. WILLDAN PROVIDES THE B3 SOFTWARE APPLICATION AND DOCUMENTATION “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WILLDAN DOES NOT WARRANT THAT THE B3 SOFTWARE APPLICATION SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, THAT THE FUNCTIONS CONTAINED IN THE B3 SOFTWARE APPLICATION WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM, OR THAT THE B3 SOFTWARE APPLICATION AND OTHER MATERIALS SUPPLIED PURSUANT TO THIS EULA FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, EXCEPT AS PROVIDED BELOW, IN NO EVENT SHALL WILLDAN OR ITS AGENTS, MANAGERS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST TIME, LOST SAVINGS, LOST DATA, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION, FOR ANY MATTER ARISING FROM OR RELATING TO THIS EULA OR THE B3 SOFTWARE APPLICATION, INCLUDING, WITHOUT LIMITATION, YOUR USE, MISUSE OR INABILITY TO USE THE B3 SOFTWARE APPLICATION OR ANY THIRD PARTY SOFTWARE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE B3 SOFTWARE APPLICATION INCLUDING ANY CHANGES TO OR INACCESSIBILITY TO THE B3 SOFTWARE APPLICATION.
- Surviving Rights. The rights and duties set forth in Sections 2, 3, 4, and 5 shall survive the termination of this EULA.
- Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
- Severability. If any provision of this EULA is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this EULA shall remain enforceable.
- Amendment. Willdan shall have the right, at any time and without notice, to add to or modify the terms of this End User License Agreement. Your access to or use of the B3 Software Application after the date such amended terms are delivered to you shall be deemed to constitute acceptance of such amended terms.
- Governing Law, Venue. This EULA is made in and shall be governed in all respects by the laws of the State of Minnesota without regard to its conflict of laws provisions. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Minnesota. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in the State of Minnesota. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Minnesota and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in the State of Minnesota.
- Entire Agreement. This EULA constitutes the complete and exclusive statement of all mutual understandings with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, discussions, communications and understandings, oral or written.
- No Third Party Beneficiary. This EULA is solely for Your benefit and does not confer any rights to any other person or business entity as a third party beneficiary or otherwise.