WLDI License Agreement
DEFINITIONS: In addition to the terms otherwise defined herein, the following terms shall have the following meanings whenever used in this Agreement with initial letters capitalized:
- Agreement shall mean this WLDI License Agreement
- Commencement Date shall mean the first business day after the day the order was submitted via WLDI’s secure online check-out
- LICENSEE shall mean the individual whose name is provided on the checkout form
- WLDI shall mean Work Loss Data Institute, LLC
- GRANT OF LICENSE. In consideration of the payment as set forth in the Order Total section of the Order Summary on WLDI’s secure online check-out (the “License Fee”) for an annual license to the Official Disability Guidelines (“ODG”) Database on the Web delivered electronically at https://www.odg-twc.com (“Software”), WLDI grants LICENSEE a nonexclusive, nontransferable right to use and access the Software on all LICENSEE computers located in LICENSEE’s locations.
WLDI REPRESENTS AND WARRANTS THAT:
- The Software will conform, perform, operate, and function materially in accordance with the users’ guide and marketing brochure provided to LICENSEE by WLDI.
- It has the right to enter into this Agreement and to grant the rights granted hereunder, including, without limitation, to license the Software
- It will take commercially reasonable steps to provide the Software to LICENSEE free from computer viruses or other malicious code.
- It shall not be deemed to be engaged in the practice of medicine or the dispensing of medical services.
- PERFORMANCE and UPTIME. During the Term of this Agreement, WLDI will use commercially reasonable efforts to make the Software accessible by LICENSEE and LICENSEE’s end-users twenty-four (24) hours per day, seven (7) days per week, subject to force majeure events that are reasonably beyond WLDI’s control, and reasonable periods of downtime for scheduled and emergency maintenance, which shall occur at times other than normal business hours.
- SUPPORT. The License Fee includes support (by phone, Webinar, or e-mail) and online training of Users via Webinar at no additional cost to LICENSEE, throughout the Term of license. The ODG Helpdesk is available from 7:00 am - 5:00 pm Pacific Time excluding weekends and holidays.
- TRAINING. Online training of Users is available at no additional cost. Onsite training is available for USD $1,500 per day plus reimbursement for travel related expenses.
- COPY RESTRICTIONS. The Software and any accompanying or included written material (“ODG Content”) are protected by copyright. Unauthorized copying of the Software, including without limitation any parts of the Software that have been modified, merged, or included with other software, is expressly forbidden. LICENSEE acknowledges and agrees that, as between LICENSEE and WLDI, WLDI is the sole and exclusive owner of the current and all past versions of the Software and the ODG Content, including, without limitation, all copyright rights in or connected with the ODG Content. To the extent that LICENSEE provides feedback input that results in any changes or improvements to the Software or the ODG Content (collectively “Feedback”), LICENSEE hereby irrevocably transfers and assigns to WLDI all worldwide right, title and interest in the Feedback, including without limitation all copyright rights thereto and all other intellectual property rights therein, and LICENSEE acknowledges and agrees that WLDI is the sole and exclusive owner of any updated versions of the Software and any new ODG Content.
- USE RESTRICTIONS. LICENSEE may not resell or license the Software, including parts of the Software that have been modified, merged or included with other software, to other Users. LICENSEE may retain and utilize software output data as needed for business marketing materials, or other purposes related to business use for the Term of the Agreement.
- TRANSFER RESTRICTIONS. The Software is licensed herein only to the LICENSEE, and may not be transferred to anyone without the prior written consent of WLDI.
- WLDI Indemnification: WLDI shall indemnify, defend, and hold LICENSEE its employees and directors harmless from any claims, liabilities, obligations, judgments, causes of actions, costs and expenses, including reasonable attorneys' fees, incurred by LICENSEE which result from any claim by a third party that the Software infringes the third party's United States patent, trademark or copyright provided such alleged infringement does not result from LICENSEE’S actions.
- LICENSEE Indemnification: LICENSEE shall indemnify, defend, and hold WLDI its affiliates, and their employees and directors (hereafter for purposes of this Section "WLDI") harmless from any claims, liabilities, obligations, judgments, causes of actions, costs and expenses, including reasonable attorney's fees, incurred by WLDI resulting from or related to: (i) any use by LICENSEE of the Software; or (iii) any claim, action or proceeding relating to the personal injury or death of any patient.
NOTICES. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail (registered or certified, return receipt requested) or sent via overnight air courier guaranteeing next day delivery, to the recipient at the address listed below. Any notice under this Agreement shall be deemed to have been given and delivered upon receipt or attempted delivery (if receipt is refused), at the following addresses:
Work Loss Data Institute
3006 Bee Caves Rd Ste A250
Austin, TX 78746
With a copy to:
Office of General Counsel
300 West 57th Street, 42nd Floor
New York, NY 10019
Attn: General Counsel
LICENSEE: At the address provided in the Your Details section of WLDI’s secure online check-out
- TERM AND TERMINATION. Unless earlier terminated as set forth herein, this Agreement shall be effective as of the Commencement Date and continue for a period of twelve (12) months (“Initial Term”). At the end of the Initial Term and each subsequent annual Term the License shall renew automatically unless terminated as described herein. The Initial Term together with all subsequent renewal terms are collectively referred to herein as the "Term". The date of expiration or termination of this Agreement shall be referred to herein as the "Termination Date". Either party can terminate the License for any subsequent Term by expressing written notice of termination to the other party at least sixty (60) days prior to the annual renewal date for that Term. At least 30 days prior to the renewal date, WLDI shall give LICENSEE notice of the renewal fees. If either party breaches this Agreement, and does not cure such breach to the non-breaching party's reasonable satisfaction within thirty (30) days of receipt of notice of breach, the non-breaching party may terminate this Agreement without further notice. Notwithstanding the foregoing, WLDI shall have the right to terminate this Agreement immediately upon notice to LICENSEE in the event that LICENSEE 's breach materially impairs or infringes any of WLDI’s intellectual property or other proprietary rights in the Software or the ODG Content, or otherwise violates the obligations set forth in Section 2 hereof.
- “Confidential Information” means any proprietary or confidential information, data, or knowledge which is disclosed at any time from one party hereto (the “Disclosing Party”) to the other party hereto (the “Receiving Party”). "Confidential Information" of WLDI expressly includes the Software and the ODG Content as well as the terms of this Agreement.
- The Receiving Party shall hold all Confidential Information of the Disclosing Party in confidence and shall not disclose or permit to be disclosed through the Receiving Party to any person, entity or governmental body, or personnel thereof, or use other than as expressly permitted by this Agreement, any Confidential Information of the Disclosing Party. The Receiving Party shall only disclose Confidential Information to employees who have a need to know such information for the purpose of enforcing such party’s rights under this Agreement or performing its obligations under this Agreement. The Receiving Party shall ensure that each such person maintains the confidentiality of the Disclosing Party’s Confidential Information in accordance with the terms of this Agreement and shall be responsible for any breach by such persons of the confidentiality restrictions contained herein.
- The obligations of the Receiving Party set forth in Subsection 14(b) shall not apply to any Confidential Information of the Disclosing Party which: (i) was in the public domain at the time of the Disclosing Party’s communication thereof to the Receiving Party; (ii) enters the public domain through no fault of the Receiving Party subsequent to the time of the Disclosing Party’s communication thereof to the Receiving Party; (iii) was in the Receiving Party’s possession free of any obligation of confidentiality at the time of the Disclosing Party’s communication thereof to the Receiving Party; (iv) is developed by the Receiving Party completely independent from the Confidential Information of the Disclosing Party; or (v) is required by law or regulation to be disclosed.
- Upon the written request of the Disclosing Party, the Receiving Party shall deliver to the Disclosing Party or destroy all of the Confidential Information in the Receiving Party’s possession, custody or control, and the Receiving Party shall not retain any copies thereof; provided that, WLDI may retain a copy of LICENSEE’s Confidential Information to comply with any applicable work product documentation requirements.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL WLDI BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, COLLATERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE INSTALLATION, USE, OR INABILITY TO USE, THE SOFTWARE, OR OTHERWISE RELATED IN ANY WAY TO THIS AGREEMENT OR THE SUBJECT THEREOF, REGARDLESS OF THE THEORY UNDER WHICH THE DAMAGES ARISE AND REGARDLESS OF WHETHER WLDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WLDI’S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT OR OTHERWISE EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY WLDI FROM LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- GOVERNING LAW AND DISPUTE RESOLUTION. The interpretation, construction and enforcement of this Agreement shall be governed by the internal laws of the State of New York without regard to conflict of law principles. The parties each hereby irrevocably waive any right to a jury trial in connection with any controversy, claim or dispute arising out of or relating to this Agreement or its subject matter (each a "Dispute"). The parties further agree that any such Dispute that the parties cannot resolve informally shall be resolved exclusively by a bench trial before a United States District Court of appropriate jurisdiction. The parties hereby expressly waive their right to have any Dispute heard in any other forum or manner.
- MISCELLANEOUS. This Agreement, inclusive of the schedules and addenda attached hereto, constitutes the entire understanding between the parties with reference to the subject matter hereof and no statements or agreements, oral or written made prior to the signing of this Agreement shall vary or modify the written terms hereof. No amendment or modification of this Agreement or waiver of any of the provisions hereof shall be valid unless made in writing and signed by the parties. Neither party may assign or transfer this Agreement or any rights or obligations hereunder (including by operation of law, merger or change of control) without the prior written consent of the other party, which shall not be unreasonably withheld.