STRATA INSIDER SOFTWARE PLATFORM LICENSE AGREEMENT
This Strata Insider Software Platform License Agreement (this “License Agreement”) is between Weather Decision Solutions, LLC (“WDS”), a California limited liability company, and the individual/entity obtaining Strata Insider services (“Licensee”). WDS and Licensee are each individually referred to as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, WDS is in the business of maintaining and developing computer software, applications and website products used in the business of providing weather consulting, forecasting and prediction services (collectively referred to as the “Platform,” as further defined below), and possesses certain Intellectual Property Rights, as defined hereunder, in the Platform;
WHEREAS, the Platform and all improvements thereto are collectively the “Licensed Software”;
WHEREAS, Licensee desires to obtain a license to use the Licensed Software for its internal business purposes, subject to the terms and conditions of this License Agreement; and
WHEREAS, WDS wishes to license to Licensee the Licensed Software, subject to all the terms and conditions of this License Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein, and intending to be legally bound, the Parties hereto agree as follows:
ARTICLE I - DEFINITIONS
1.1“Affiliated Entity” mean any entity having greater than fifty percent (50%) common ownership or control with Licensee, or that has greater than fifty percent (50%) ownership or control of Licensee, or in which Licensee has greater than fifty percent (50%) ownership or control.
1.2“Confidential Information” has the meaning set forth in Section 6.6.
1.3“Customer” means a Licensee customer, client or reseller to which Licensee sublicenses the Licensed Software for End Users’ use.
1.4“Data” means all means data or information that identifies or can reasonably be used to identify or contact a natural person, including without limitation any information defined as “personal data,” “personal information,” or “personally identifiable information,” under applicable Laws, and all other Confidential Information owned, stored, used, maintained or controlled by or on behalf of Licensee.
1.5“Documentation” means any user manuals, handbooks, and other written materials relating to the Licensed Software which are, from time to time, licensed by WDS to Licensee pursuant to the terms of this License Agreement, pursuant to any maintenance agreement between the Parties, or otherwise.
1.6“Dollars” or “$” means the lawful currency of the United States.
1.7“Effective Date” means the date on which the license granted hereunder shall become effective, i.e., the date that Licensee begins using the Licensed Software
1.8“End User” means an employee or other authorized user of a Customer.
1.9“Intellectual Property Rights” means all intellectual property in any and all media, including digital, and in any jurisdiction throughout the world, now known or hereafter devised, whether arising by operation of law, contract, license or otherwise, and all rights therein and thereto, including all: (i) patents and patent applications (including all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof) and patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, Internet domain names (whether or not trademarks or service marks) registered in any top-level domain by any authorized private registrar or governmental authority, assumed names, corporate names, social media handles and other indicia of source, together with all goodwill associated therewith and symbolized thereby, in each case whether or not registered; (iii) published and unpublished works of authorship, whether copyrightable or not, including all statutory and common law copyrights associated therewith; (iv) mask works; (v) registrations, applications, extensions and renewals for any of the items listed in clauses (ii), (iii) or (iv); (vi) websites and all contents thereof, web addresses and social media site content and accounts; (vii) software, meaning all computer software and applications (including web sites, HTML code, firmware and other software embedded in hardware devices), data files, object code, source code, middleware, APIs, algorithms, tools, libraries, user interfaces and databases, in any form or format, however fixed, and all related documentation (including technical and functional specifications, flow charts, schematics and user guides and manuals); (viii) databases and all information contained therein, data compilations, and all data and database rights; (ix) trade secrets, inventions, discoveries, developments, improvements, concepts, ideas, formulae, compositions, know how, show how, methodologies, strategies, techniques, processes, procedures, specifications, lists of customers or prospective customers, lists of licensors, suppliers and service providers, pricing and cost information and records, research, plans, proposals, test reports, manuals, handbooks, standards and other confidential or proprietary information, data or materials; (x) tangible embodiments of any of the foregoing; and (xi) moral rights and other proprietary rights relating to any of the foregoing, including all causes of action, judgments, settlements, claims and demands of any nature related thereto, and the right to prosecute and recover damages for any past, present or future infringements and other violations thereof.
1.10“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.11“Licensed Software” has the meaning set forth in the recitals.
1.12“Licensed Software Database” means the database (including related tables, structures, fields, indexes, references and files) used by the Licensed Software.
1.13“Modification” means any change to: (i) the Licensed Software including, but not limited to, changes to the binary or source code, changes to the data structure, or porting to a different operating system or hardware platform; or (i) the Licensed Software Database, including, but not limited to, changes to the tables, structures, fields, indexes, references and files, or the substitution of another database. The term “Modification” does not include: (a) any software which may be developed by WDS as a complete replacement for the Licensed Software; (b) the input of raw data into the Licensed Software Database or the extraction of data or reports from the Licensed Software Database in accordance with the normal functions of the Licensed Software and the Licensed Software Database; (c) the addition of new tables within the Licensed Software Database; or (d) the development of interfaces to or from other applications. The term “Modification” also does not include the development of export files approved by WDS that will enable posting to other software applications.
1.14“Partner” (also “Forecaster”) means an independent third party that offers subscriptions to the Licensed Software, together with its own weather forecasts and content, to Licensee through the Strata Partner Network. WDS acts as merchant of record for those subscriptions, and the Partner is not an agent of WDS.
1.15“Partner Content” means the forecasts, forecast discussions, maps, overlays, messages, branding, names, and logos created or supplied by a Partner.
1.16“Permitted Uses” means for Licensee’s internal business purposes and for End-Users’ use solely for data processing purposes.
1.17“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
1.18“Platform” means the programs, routines, instructions, and features set forth on Schedule I hereto owned and licensed by WDS, including any and all media, whether now known or later developed, manuals, operating instructions, training materials and other materials associated therewith. The “Platform” shall also include, without limitation, any corrective codes, enhancements, updates or other Modifications (as defined below) which are supplied to Licensee by WDS, under this License Agreement, under any maintenance agreement between the Parties, or otherwise.
1.19“Update” means any updates, code corrections, Modifications or enhancements which may be developed by WDS, from time to time, with respect to the Licensed Software. The term “Update” does not include any software program which may be developed by WDS as a complete replacement for the Licensed Software.
ARTICLE II - LICENSE OF LICENSED SOFTWARE
2.1Generally. Subject to and conditioned on Licensee’s compliance with the terms and conditions set forth in this License Agreement, including payment of the License Fees as defined in Section 3.1 hereunder, WDS hereby grants to Licensee, and Licensee accepts, a non-exclusive, and non-transferable license during the Term (as defined below) to use the Licensed Software and sublicense the Licensed Software to Customers solely for the Permitted Uses.
2.2Reproduction. Licensee shall not reproduce, in whole or in part, the Licensed Software except for use by Licensee.
2.3Installation. Unless otherwise agreed in writing, installation, startup, configuration, implementation, and training services with respect to the Licensed Software is the responsibility of Licensee.
2.4License Restrictions. Except as this License Agreement expressly permits, Licensee shall not, and shall not permit any other Person, Customer or End User to:
(a)copy the Licensed Software, in whole or in part;
(b)modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Licensed Software;
(c)rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software to any third party;
(d)reverse engineer, decompile, disassemble, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
(e)bypass or breach any security device or protection used for or contained in the Licensed Software or Licensed Software Database;
(f) remove, delete, efface, alter, obscure or otherwise change any trademarks, warranties, disclaimers, Intellectual Property Rights, proprietary rights or other symbols, notices or marks on or relating to any copy of the Licensed Software;
(g)use the Licensed Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any Person, or that violates any applicable Law.
(h)use the Licensed Software for: (i) benchmarking or competitive analysis of the Licensed Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to WDS’s detriment or commercial disadvantage; or
(i) use the Licensed Software or Licensed Software Database other than for the Permitted Uses or in any manner or for any purpose not expressly permitted by this License Agreement.
2.5Licensed Software Database Modifications. Except as otherwise provided herein, Licensee shall only be permitted to make Modifications to the Licensed Software Database with WDS’s prior written permission, and subject to such terms and conditions as WDS may prescribe. Such Modifications shall not affect the scope, limitations and terms of this license, and shall not relieve Licensee of its obligations hereunder, including, without limitation, Licensee’s obligations of confidentiality. Any unauthorized Modification of the Licensed Software Database shall void any and all warranties with respect to the Licensed Software, and release WDS from any and all liability resulting from the use of the Licensed Software. Unauthorized Modifications to the Licensed Software Database shall constitute grounds empowering WDS, at its sole option, to terminate this License Agreement and any other agreements between the Parties relating to the Licensed Software, including, without limitation, any maintenance agreements with respect to the Licensed Software as provided under Section 5.4 herein.
ARTICLE III - PAYMENT
3.1Generally. In consideration for the license of the Licensed Software granted pursuant to this License Agreement, Licensee shall pay to WDS the license fees and charges (collectively, the “License Fees”) set forth in Schedule I in the manner provided in Schedule I. Late payments shall be subject to such charges and penalties and interest as also set forth in Schedule I.
3.2Taxes. All amounts payable pursuant to this License Agreement and as specified on Schedule I, unless indicated otherwise, are exclusive of all federal, state, local, municipal, or other excise, sales, use and intellectual property tax liability, now in force or enacted in the future, and all such taxes and fees shall be paid by Licensee, who shall indemnify, defend and hold WDS harmless with respect to any tax for which Licensee is responsible, and any costs or expenses incurred by WDS with respect thereto, including, but not limited to, attorneys’ fees; provided however, nothing in this License Agreement shall require Licensee to make any payment or indemnify WDS for any income taxes imposed on WDS. Licensee shall obtain and provide to WDS any certificate of exemption or similar document required to evidence the exemption of any transaction under this License Agreement from sales tax, use tax, excise tax or other intellectual property tax liability.
ARTICLE IV - TERM AND TERMINATION
4.1Term. This License Agreement shall become effective on the Effective Date. The license granted under this License Agreement shall continue in effect until Licensee ceases the payment of the License Fees, or at the option of WDS, to be exercised within its sole discretion (the “Term”).
4.2Effect of Termination. Except as otherwise specifically provided in this License Agreement and Section 4.1, upon termination of this License Agreement the Parties shall have no further rights or obligations under this License Agreement and the license granted hereunder shall terminate automatically without any further action by the Parties. Upon termination of this License Agreement, Licensee shall not be entitled to receive any refund, in whole or in part, of any fees or charges paid by Licensee under this License Agreement, regardless of the reason or basis for the termination. Upon termination, any licenses or sublicenses granted by WDS shall also terminate.
4.3Survival of Rights; Survival of Certain Provisions. Notwithstanding the provisions of Section 4.1, or any other provision of this License Agreement, termination of this License Agreement shall not affect: (i) any rights or obligations of the Parties accruing prior to termination; (ii) any rights or obligations accruing as a result of termination and/or the basis of the termination, as and to the extent specifically provided in this License Agreement; and (iii) any claims accruing as a result of the breach of this License Agreement. Those provisions of this License Agreement which, by their terms or by their operation, are intended to survive termination, shall survive termination of this License Agreement.
ARTICLE V – MAINTENANCE AND UPDATES
5.1Generally. Subject to the terms and conditions of this License Agreement, WDS hereby agrees to provide, and Licensee agrees to accept, the services described below.
5.2Updates. WDS shall provide Licensee any Updates for the Licensed Software when such Updates are developed and published by WDS and made generally available to other licensees of the Licensed Software. All Updates shall become part of the Licensed Software and shall be subject to the terms and conditions of this License Agreement. Nothing herein shall be construed as requiring WDS to develop Updates. Licensee shall be solely responsible for ensuring that any and all Updates are provided to Customers.
5.3Licensee’s General Obligations. Licensee agrees that the obligations of Licensee under this License Agreement, including, but not limited to, use limitations and Licensee’s responsibility to prevent unauthorized disclosure of the Licensed Software, shall apply equally to all Updates furnished by WDS to Licensee.
ARTICLE VI - OWNERSHIP AND CONFIDENTIALITY
6.1Generally. Subject to the rights granted to Licensee pursuant to this License Agreement, all right, title, and interest in and to the Licensed Software and all related materials are and shall at all times remain the sole and exclusive property of WDS. WDS may use, sell, assign, transfer, and license copies of, and rights relating to, the Licensed Software to third parties, free from any claim of Licensee. The Licensed Software shall remain the exclusive property of WDS and shall be used by Licensee only as expressly authorized in this License Agreement. Licensee agrees that it will hold all of the Licensed Software and all information relating thereto in strict confidence. Licensee acknowledges and agrees that Licensee does not have under or in connection with this License Agreement any ownership interest in the Licensed Software, Licensed Software Database or Documentation, or any related Intellectual Property Rights.
6.2Copies and Documentation. Physical copies of the Licensed Software (in optical disc, tape, electronic transfer, or other form, whether now known or later developed) and Documentation shall remain the property of WDS. All such copies shall be deemed to be on loan with Licensee during the term of the license granted pursuant to this License Agreement. All such copies and Documentation shall be returned to WDS by Licensee upon termination of this License Agreement.
6.3Disclosure Pursuant to Legal Process of Licensed Software. If required by order of any executive, legislative or judicial body to reveal the existence, use and/or any information relating to the Licensed Software, Licensee shall provide WDS with notice of such order or the attempt to obtain such an order within three (3) business days of the first time at which Licensee becomes aware of the same. Licensee shall exercise its best efforts to maintain the confidentiality of the Licensed Software in any proceeding relating to such order.
6.4Confidential Information. Any materials and information provided by either Party to the other shall be considered “Confidential Information” and neither Party may disclose any Confidential Information except to its agents, employees, officers or members; provided, however, that information shall not be considered Confidential Information to the extent that such information (i) was in the possession of the receiving Party prior to receipt from the disclosing Party; (ii) is or becomes publicly available without any breach of this License Agreement by or on behalf of the receiving Party; (iii) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information; or (iv) is rightfully received by the receiving Party from a third party without restriction.
6.5Public Domain. The provisions of this Article VI relating to the confidentiality of the Licensed Software and the protection thereof shall not apply to information that is in the public domain at the time of the disclosure through no fault of Licensee.
6.6Data Sharing. To the extent WDS’s provision of services and product Updates relating to this License Agreement requires Licensee to share Data with WDS, WDS will comply with all applicable Laws in its collection, receipt, access, use, storage, disposal, and disclosure of Data and will employ reasonable security measures to protect Data in accordance with accepted industry standards.
6.7Survival. The provisions of this Article VI shall survive the termination of this License Agreement.
ARTICLE VII – REPRESENTATIONS AND WARRANTIES; LIMITATIONS OF LIABILITY; INDEMNITY
7.1WDS Warranties. WDS hereby warrants to Licensee: (i) WDS has valid ownership and license rights and consents to use of the Licensed Software, including, but not limited to, the use of the Intellectual Property Rights obtained and held by WDS; (ii) WDS has not granted any rights in the Licensed Software, Licensed Software Database, or Documentation to any third party which would prohibit WDS from entering into this License Agreement with Licensee or from fulfilling its obligations in this License Agreement to Licensee; (iii) WDS shall perform all of its obligations hereunder in accordance with all applicable Laws and regulations; and (iv) WDS has all consents, permissions or licenses necessary to perform its obligations to Licensee under this License Agreement.
7.2Licensee Warranties. Licensee expressly agrees and warrants that it has carefully reviewed this License Agreement and understands its terms, and that it has relied wholly upon its own judgment and knowledge and has not been influenced to any extent whatsoever in making this License Agreement by any representations or statements made by WDS any WDS representative, except such statements or representations as are contained in this License Agreement.
7.3Disclaimer of Implied and Other Warranties. EXCEPT AS PROVIDED IN SECTION 7.1 HEREIN, THE LICENSED SOFTWARE, THE LICENSED SOFTWARE DATABASE AND DOCUMENTATION AND ALL OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY WDS ARE PROVIDED “AS-IS.” WDS HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN WITH RESPECT TO THE LICENSED SOFTWARE WHETHER WRITTEN, ORAL, IMPLIED, STATUTORY OR OTHERWISE. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY. WITHOUT LIMITING THE FOREGOING, WDS MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE, THE LICENSED SOFTWARE DATABASE OR THE DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE.
7.4Exclusion of Certain Types of Damages. Except as otherwise provided herein (including as it relates to WDS’s indemnification obligations), in no event shall WDS be liable for any incidental, consequential or punitive damages incurred by Licensee, Customers or any third party with respect to any claim or matter arising out of or relating to this License Agreement, or the performance or the breach thereof. For purposes of this License Agreement, consequential damages include, but are not limited to, lost profits, claims of third parties, claims of Customers against Licensee or WDS, cost of capital, loss of the use of equipment and/or loss of production. The limitations set forth in this Section 7.4 shall apply regardless of whether the claim or matter in question is characterized as arising in contract, tort, breach of warranty, indemnity, strict liability, statutory liability or otherwise.
7.5Defense and Indemnification. Licensee shall hold WDS, its directors, officers, members, Affiliated Entities, holding companies, parent companies, subsidiaries, agents, attorneys, employees, representatives, successors, assigns, licensees, and shareholders, (each, an “Indemnified Party”) harmless, and shall defend them, against any claim, suit or other proceeding brought against each such Indemnified Party, or any of them, based upon any allegation that (i) the use of the Licensed Software, Licensed Software Database, Documentation or any part of WDS’s products, services or modifications to the products by or on behalf of Licensee with any hardware, software, system, network or service that is neither provided by WDS nor authorized by WDS in this License Agreement and the Documentation, or otherwise in writing, infringes, misappropriates or otherwise violates the Intellectual Property Rights of any Person; (ii) if true, would constitute a breach by Licensee of any representation, warranty, covenant or obligation under this License Agreement; (iii) relates to the use of the Licensed Software and Documentation by or on behalf of Licensee that is outside the purpose, scope or manner of use authorized by this License Agreement or the Documentation, or in any manner contrary to WDS’s instructions; or (iv) relates to gross negligence, abuse, misapplication, misuse, or reckless or willful misconduct by or on behalf of Licensee with respect to the Licensed Software or Documentation or otherwise in connection with this License Agreement. Licensee shall defend and indemnify each such Indemnified Party for all damages, costs, liabilities and expenses (including reasonable attorneys’ fees) such Indemnified Party may suffer or incur in connection with any such claim in (i), (ii), (iii) or (iv), above.
7.6Release of Liability. As part and parcel of the consideration for this License Agreement, on behalf of itself and its, successors, assigns and shareholders, Licensee releases from all liability and promises not to sue WDS or its directors, officers, members, Affiliated Entities, holding companies, parent companies, subsidiaries, agents, attorneys, employees, representatives, successors, assigns, licensees, and shareholders from any and all claims of negligence and any resultant damages which may arise from this License Agreement or the services or rights provided in connection with this License Agreement, including but not limited to the provision of weather forecasting, prediction and/or analyses.
7.7Limitation on Amount of Claims Against WDS. Notwithstanding any other provisions of this License Agreement, the total liability, in the aggregate, of WDS and WDS’s employees, officers, directors, representatives, successors, assigns, principals and/or agents, to Licensee or any third party with respect to any claims or matters arising out of or relating to this License Agreement, or the performance or the breach thereof, shall not exceed the total consideration paid by Licensee to WDS. Notwithstanding anything to the contrary in this Agreement, Licensee understands and acknowledges that forecasting weather events is an inherently uncertain endeavor, subject to variables outside of WDS’s control. WDS takes all reasonable steps to forecast weather events as accurately as possible, but WDS cannot guarantee the accuracy of its weather forecasting, prediction and/or analysis services.
7.8Partner Content; No WDS Endorsement. Where Licensee obtains the Licensed Software through a Partner, the weather forecasts and other Partner Content are created and provided by that Partner as an independent third party, not by WDS. WDS does not create, control, endorse, or guarantee Partner Content and is not responsible for it. The disclaimers and limitations in this Article VII, including the disclaimer of any guarantee of forecast accuracy, apply equally to Partner Content. Licensee’s relationship for the underlying weather content is with the Partner; WDS’s role is limited to providing the Platform and acting as merchant of record for billing.
ARTICLE VIII - MISCELLANEOUS
8.1Assignment. Neither Party may assign this License Agreement or any rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, except that either Party may assign this License Agreement to the surviving entity in a merger or consolidation in which it participates or a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all terms of this License Agreement.
ARTICLE IX - GENERAL PROVISIONS
9.1Entire Agreement. This License Agreement, including any Schedules or other attachments, supersedes any and all agreements, either oral or written, between the Parties hereto, and contains all of the covenants and agreements between the Parties with respect to the subject matter hereof, except for any agreements referenced herein for the purpose of such reference. Each Party to this License Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement, statement or promise not contained in this License Agreement shall be valid or binding.
9.2Severability. If any provision in this License Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
9.3Governing Law and Venue. This License Agreement will be governed by and construed in accordance with the Laws of the State of California. The Parties agree to the jurisdiction of the state and federal courts in California, in any action arising out of or relating to this License Agreement and waive any other venue to which either Party may be otherwise entitled.
9.4Interpretation. This License Agreement shall not be interpreted against a Party by virtue of such Party’s participation in the drafting of the License Agreement or any of the provisions herein.
9.5Modification. This License Agreement may be modified or rescinded only by a writing signed by WDS.
9.6Waiver. No waiver of any right pursuant hereto or waiver of any breach hereof shall be effective unless in writing and signed by the Party waiving such right or breach. No waiver of any right or waiver of breach shall constitute a waiver of any other or similar right or breach; and no failure to enforce any right hereunder shall preclude or affect the latter enforcement of such right.
9.7Inurement. This License Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, estates, heirs and legatees of each of the Parties hereto.
9.8Context. When the context so requires as used in this License Agreement, the singular shall be deemed to include the plural and the plural shall be deemed to include the singular.
9.9Captions and Headings. The captions and headings of the various sections herein are solely for the convenience of the Parties and shall not affect or control the meaning or construction of this License Agreement.
SCHEDULE I
Subject to existing agreement.