YOU SHOULD READ THIS LICENSE AGREEMENT CAREFULLY. BY INSTALLING OR USING THE PRODUCT, YOU ARE ACCEPTING ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT (THE "AGREEMENT"). THIS LICENSE IS BEING PROVIDED SOLELY TO YOU BY 80/20, LLC ("80/20"), AND YOU MAY NOT ALLOW ANY THIRD PARTY OTHER THAN AUTHORIZED USERS TO INSTALL, VIEW OR USE THE PRODUCT. IF YOU DO NOT ACCEPT EVERY TERM OF THIS AGREEMENT, PROMPTLY ERASE ALL FILES FROM THE PRODUCT THAT YOU HAVE DOWNLOADED ONTO YOUR SYSTEM.
a. "Product" shall mean the IdeaBuilder software program, downloaded by You
from the 80/20 Website, and includes (i) any updates, modiﬁcations or new
releases of such software program that may be provided by 80/20 to You; and
(ii) any input information, format specifications, or CAD Files that may be
included in such software program or provided by 80/20 with such software
b. "Documentation" shall mean all material, other than the software
downloaded from 80/20 or furnished by 80/20 to you, including, for example,
operating instructions, instructional documentation, guides, and all
permitted copies of such material made by you.
c. "Authorized User" shall mean an individual who works for you as an
employee whom you authorize to access and use a Product as permitted by
d. "You" shall mean the person or entity who has received this Product
directly from 80/20.
e. "80/20 Website" means the Website found at www.8020.net or any successor
or affiliated Website thereto.
Subject to the terms of this Agreement, 80/20 hereby grants you, and you accept, a limited, non-exclusive, nontransferable, non-sublicensable, license to use the Product in object code only for the term of this Agreement (the "License"). The License includes the right for your Authorized Users to use the Product solely in support of your business purposes and subject to all terms and conditions hereof. 80/20 also grants to you the right for you and your Authorized Users to use the Documentation solely in conjunction with the License. You agree not to disclose, publish, release, or transfer to a third party any portion of the Product without first obtaining 80/20's written permission, which may be withheld for any reason, on a case-by-case basis.
The Product and Documentation are licensed to you, not sold, and your and your Authorized Users’ use of the Product and Documentation is strictly governed by the terms of this Agreement. As between you and 80/20, 80/20 is the sole owner of the Product and Documentation, and you hereby waive any claim to ownership of the Product or Documentation or any derivative of any thereof. You acknowledge that 80/20 may license certain portions of the Product from third parties. The rights that you are being granted are subject to 80/20’s, or its licensors’, rights in the Product. If at any time 80/20 grants you the right to use additional software or programs, including updates to any software previously provided to you, such software and programs and any related documentation will automatically be incorporated herein and form part of the Product and Documentation.
3. TERM AND TERMINATION
Each license granted hereunder shall commence upon your receipt of any portion of the Product and shall continue until terminated in accordance with this Agreement. 80/20 may terminate this Agreement at any time, with or without cause, upon notice to you. Termination of this Agreement for any reason shall not affect any sums due from you to 80/20, whether pursuant to this Agreement or otherwise, nor shall termination affect any of 80/20’s remedies against you.
4. RESPONSIBILITIES OF CUSTOMER
You shall have sole responsibility and all liability for your and your Authorized Users’ compliance with this Agreement and for any actions relating to or resulting from your and your users’ use of the Product and the Documentation, including machine configuration, program installation, and operating methods. You agree to implement sufficient security measures to protect 80/20's proprietary interest in the Product and not to allow the use, copying, or modification of the Product or Documentation other than in accordance with this Agreement.
Upon termination of this Agreement for any reason, you agree to (i) permanently delete all portions of the Product from all computers on which it was installed or used, (ii) return to 80/20 all portions of the Product that exist, and all Documentation, and (iii) discontinue use of the Product or any portion thereof, and of any report, output, or bill of materials, generated through your use of the Product.
5. DISCLAIMERS AND LIMITATIONS
(a) THE PRODUCT, DOCUMENTATION AND ANY SERVICES PROVIDED BY OR ON BEHALF OF
80/20 HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND. 80/20 DOES NOT MAKE ANY, AND
EXPRESSLY DISCLAIMS ALL, WARRANTIES, CONDITIONS AND REPRESENTATIONS
WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF
TRADE OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
(b) THE PARTIES UNDERSTAND THAT YOU MAY USE CERTAIN THIRD-PARTY SERVICES OR
EQUIPMENT IN CONJUNCTION WITH THE PRODUCT. 80/20 MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES,
OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD-PARTY SERVICES OR
EQUIPMENT, INCLUDING THE ABILITY TO INTEGRATE SAME WITH THE PRODUCT.
THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE AND SUITABILITY OF
ANY THIRD-PARTY SERVICES OR EQUIPMENT LIE SOLELY WITH YOU AND THE
VENDOR OR SUPPLIER OF SUCH THIRD-PARTY SERVICES OR EQUIPMENT.
(c) THE AMOUNTS TO BE PAID TO 80/20, IF ANY, UNDER THIS AGREEMENT DO NOT
INCLUDE ANY ASSUMPTION OF RISK AND 80/20 WILL NOT, UNDER ANY CIRCUMSTANCES,
BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE
PROVISION OR USE OF THE PRODUCT, FOR (i) ECONOMIC, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, WHETHER CLAIMED UNDER
CONTRACT, TORT, BREACH, FAILURE OF WARRANTY OR ANY OTHER LEGAL THEORY OR
(ii) LOSS OF OR DAMAGE TO HARDWARE OR COMPUTER SYSTEMS, YOUR DATA OR
(d) THE MAXIMUM AGGREGATE LIABILITY OF 80/20 FOR ALL CLAIMS UNDER THIS
AGREEMENT WILL BE THE LESSER OF (I) ONE HUNDRED DOLLARS ($100.00) AND (II)
50% OF THE FEES RECEIVED BY 80/20 DIRECTLY FROM YOUR USE OF THE PRODUCT
DURING THE TWELVE (12) MONTHS IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF
THIS AGREEMENT, IF ANY.
(e) EXCEPT FOR ACTIONS FOR NONPAYMENT OR BREACH OF 80/20’S PROPRIETARY
RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE
BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER A PARTY KNEW OR SHOULD
HAVE KNOWN OF THE CLAIM.
(f) ANY PRODUCTS OR SERVICES PROVIDED BY 80/20 TO YOU, IN ADDITION TO THE
PRODUCTS THAT 80/20 HAS SPECIFICALLY AGREED TO PROVIDE IN THIS AGREEMENT,
WILL BE PROVIDED SUBJECT TO THIS SECTION.
(g) THE PRODUCT IS NOT GUARANTEED TO MEET YOUR ACTUAL OR STATED
REQUIREMENTS. THE PRODUCT MAY REQUIRE CHANGES, INCLUDING MODIFICATIONS
(INCLUDING CHANGES OR MODIFICATIONS AT AN ADDITIONAL COST), IN ORDER TO
FUNCTION IN YOUR UNIQUE ENVIRONMENT. 80/20 DOES NOT REPRESENT, AND
DISCLAIMS ANY WARRANTY THAT THE FUNCTIONING OF THE PRODUCT WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT THE PRODUCT WILL MEET YOUR
You will indemnify, defend and hold 80/20 and its affiliates and its and their directors, officers, employees, contractors, and agents, harmless from and against any and all claims, damages, losses, liabilities, actions, judgments, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with: (a) your or your Authorized Users’ use of the Product, or any component thereof; (b) your or any Authorized User’s negligence, willful misconduct or breach of this Agreement; or (c) any information, design, specification, instruction, services, data, or other material furnished by or on behalf you or your Authorized Users in connection with use of the Product.
7. PERMISSION TO COPY
Any portion of the Product that is furnished in machine readable form may be copied, in whole or in part, in machine readable form in a reasonably sufficient number for your use in compliance with this Agreement. You agree to provide a list of users of the Product to 80/20 upon request. You may not copy, use or modify any source code of the Product.
You agree to maintain all copyright or proprietary notices in any copy of a Product as they existed in the original provided to you.
8. USE RESTRICTIONS
Except to the extent expressly authorized by this Agreement, you may not: (a) sell, host, resell, license, sublicense, distribute, rent, lease or share the Product or Documentation; (b) permit any other person to use or access the Product or Documentation; (c) use the Product to provide services to third persons; (d) modify, or create any derivative works based upon, the Product or Documentation; (e) copy any feature, design or graphic in the Product or Documentation, or use or access the Product or Documentation in order to build a competitive solution or to assist someone else to build a competitive solution; (f) alter, remove or conceal any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the Product or Documentation; (g) reverse engineer the Product (to the extent such restriction is permitted by law); (h) use the Product in a manner that violates any applicable law or regulation; (i) use the Product or Documentation, or any output, report, or bill of materials, generated by the Product, in connection with the marketing, offering or sale of products or services other than 80/20’s products or services, or to develop bids or offers for products or services other than 80/20’s products or services; (j) provide access to, or demonstrate, the Product to any third party for the purpose of benchmarking or comparative assessment; (k) use any automated system, "bot" or software to extract or scrape data from any website or other interfaces through which 80/20 makes available the Product; or (l) permit any other person to do any of the foregoing.
9. GOVERNING LAW AND VENUE
This Agreement will be governed by the internal laws of the State of Indiana, without reference to its choice of law rules, and may be executed in counterparts. The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) from this Agreement and any transaction between them related thereto. The venue for litigation regarding any aspect of this Agreement will be in the state courts of the State of Indiana located in Allen County, Indiana or the United States Federal courts for the Northern District of Indiana, and the parties consent to such jurisdiction.
10. WAIVER; ENTIRE AGREEMENT; INVALIDITY
No waiver of any breach of this Agreement shall be effective unless in writing and no waiver shall constitute a waiver of any subsequent breach. This Agreement is fully integrated and supersedes all prior agreements, understandings, negotiations, correspondence, or commitments of whatever nature. Any amendments to this Agreement must be in writing signed by duly authorized officers of each of the parties. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement and such invalid provision shall be deemed modified to the extent necessary to make it valid and enforceable or, if such provision cannot be so modified, it shall be deemed deleted from this Agreement. In the event that any portion of this Agreement is found to be invalid or unenforceable, the parties agree that such a finding shall have no effect on the remaining portions of the Agreement.
11. INDEPENDENT CONTRACTOR
It is understood and agreed that 80/20 shall not exercise control over your activities or operations other than as specifically provided herein and that the only relationship between 80/20 and you are that of licenser and licensee and not that of employer / employee or partners or joint ventures. You shall have no authority to bind 80/20 to any obligation or contract with any third party.
12. NO ASSIGNMENT
You may not assign your rights or delegate your duties hereunder without the prior written permission of 80/20.
13. INJUNCTIVE RELIEF
You acknowledge that any violation of the provisions hereof may result in irreparable injury to 80/20 for which there may be no adequate remedy at law, and agree that, in the event of your breach of the provisions hereof, 80/20 shall be entitled to seek injunctive relief in addition to any other remedy at law or in equity which may be available to 80/20 without the posting of a bond or the establishment of a breach of this Agreement.
14. ATTORNEYS’ FEES AND COSTS
In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
No license, right or interest in any 80/20 (or 80/20’s licensors’) trademark, trade name, or service mark, including "IdeaBuilder", is granted. Any rights not explicitly granted to you are expressly reserved by and to 80/20.
You acknowledge that the Product and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and the applicable export controls of the United State of America, including any changes to those regulations that take effect after your agreement to obtain the license granted by this Agreement. You agree to (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with 80/20 in any official or unofficial audit or inspection that relates to these controls and (c) not export, re-export, divert or transfer, directly or indirectly, any such item or direct products thereof to any country that is embargoed. You shall be liable for complying with any export laws or regulations.
80/20 may modify this Agreement from time to time. 80/20 will post notice of modifications to this Agreement to the 80/20 Website or by email notice to you. Changes will not apply retroactively and will become effective no sooner than 30 days after they are posted, unless the change addresses a new function for the Product or a legally required change, in which case such changes will be effective immediately. If you do not agree to the modified Agreement, you should discontinue your use of the Product. Your continued use of a Product constitutes your acceptance of the modified Agreement.
80/20 Software License Agreement