BlueWhaleCRM License
IMPORTANT - USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THE SOFTWARE.

This license is a legal “Agreement” concerning the use of Software between you, the end user, either individually or as an authorized representative of the company acquiring the license, and TechWhale Solutions, Inc. acting directly or through their subsidiaries or authorized distributors (collectively “TechWhale Solutions, Inc.”).

USE OF SOFTWARE INDICATES YOUR COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. If you do not agree to these terms and conditions, promptly return, or, if received electronically, certify destruction of Software and all accompanying items within five days after receipt of Software and receive a full refund of any license fee paid.

END USER LICENSE AGREEMENT

1. GRANT OF LICENSE. The software programs you are installing, downloading, or have acquired with this Agreement, including any updates, modifications, revisions, copies, documentation and design data (“Software”) are copyrighted, trade secret and confidential information of TechWhale Solutions, Inc. or its licensors who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. TechWhale Solutions, Inc. grants to you, subject to payment of appropriate license fees, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object-code form; (b) for your internal business purposes; and (c) on the computer hardware or at the site for which an applicable license fee is paid, or as authorized by TechWhale Solutions, Inc.. TechWhale Solutions, Inc.’s standard policies and programs, which vary depending on Software, license fees paid or service plan purchased, apply to the following and are subject to change: (a) relocation of Software; (b) use of Software, which may be limited, for example, to execution of a single session by a single user on the authorized hardware or for a restricted period of time (such limitations may be communicated and technically implemented through the use of authorization codes or similar devices); (c) support services provided, including eligibility to receive telephone support, updates, modifications, and revisions. Current standard policies and programs are available upon request.

2. BETA CODE. Portions or all of certain Software may contain code for experimental testing and evaluation (“Beta Code”), which may not be used without TechWhale Solutions, Inc.’s explicit authorization. Upon TechWhale Solutions, Inc.’s authorization, TechWhale Solutions, Inc. grants to you a temporary, nontransferable, nonexclusive license for experimental use to test and evaluate the Beta Code without charge for a limited period of time specified by TechWhale Solutions, Inc.. This grant and your use of the Beta Code shall not be construed as marketing or offering to sell a license to the Beta Code, which TechWhale Solutions, Inc. may choose not to release commercially in any form. If TechWhale Solutions, Inc. authorizes you to use the Beta Code, you agree to evaluate and test the Beta Code under normal conditions as directed by TechWhale Solutions, Inc.. You will contact TechWhale Solutions, Inc. periodically during your use of the Beta Code to discuss any malfunctions or suggested improvements. Upon completion of your evaluation and testing, you will send to TechWhale Solutions, Inc. a written evaluation of the Beta Code, including its strengths, weaknesses and recommended improvements. You agree that any written evaluations and all inventions, product improvements, modifications or developments that TechWhale Solutions, Inc. conceived or made during or subsequent to this Agreement, including those based partly or wholly on your feedback, will be the exclusive property of TechWhale Solutions, Inc.. TechWhale Solutions, Inc. will have exclusive rights, title and interest in all such property. The provisions of this subsection shall survive termination or expiration of this Agreement.

3. RESTRICTIONS ON USE.
3.1 You may copy Software only as reasonably necessary to support the authorized use. Each copy must include all notices and legends embedded in Software and affixed to its medium and container as received from TechWhale Solutions, Inc.. All copies shall remain the property of TechWhale Solutions, Inc. or its licensors. You shall maintain a record of the number and primary location of all copies of Software, including copies merged with other software, and shall make those records available to TechWhale Solutions, Inc. upon request. You shall not make Software available in any form to any person other than employees and contractors, excluding TechWhale Solutions, Inc.’s competitors, whose job performance requires access. You shall take appropriate action to protect the confidentiality of Software and ensure that any person permitted access to Software does not disclose it or use it except as permitted by this Agreement. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory local law, you shall not reverse-assemble, reverse- compile, reverse-engineer or in any way derive from Software any source code. You may not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it, whether by operation of law or otherwise (“attempted transfer”), without TechWhale Solutions, Inc.’s prior written consent and payment of TechWhale Solutions, Inc.’s then- current applicable transfer charges. Any attempted transfer without TechWhale Solutions, Inc.’s prior written consent shall be a material breach of this Agreement and may, at TechWhale Solutions, Inc.’s option, result in the immediate termination of the Agreement and licenses granted under this Agreement.

3.2 SOURCE CODE. If the software license purchased includes access to source code or proprietary functionality, you will not be permitted to distribute, share, or sell that source code to any outside source. The source code is provided to you to develop additional functionality within your organization. If you request redistribution rights of your derivative works, you must first obtain permission and comply with TechWhale Solutions Inc.’s licensing for your distribution package. You may not distribute any part of the source code in your applications. Only fully compiled versions may be packaged and resold or distributed.

3.3 The terms of this Agreement, including without limitation, the licensing and assignment provisions shall be binding upon your heirs, successors in interest and assigns. The provisions of this section 4 shall survive the termination or expiration of this Agreement.

4. LIMITED WARRANTY.
4.1 TechWhale Solutions, Inc. warrants that during the warranty period Software, when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual. TechWhale Solutions, Inc. does not warrant that Software will meet your requirements or that operation of Software will be uninterrupted or error free. The warranty period is 90 days starting on the 15th day after delivery or upon installation, whichever first occurs. You must notify TechWhale Solutions, Inc. in writing of any nonconformity within the warranty period. This warranty shall not be valid if Software has been subject to misuse, unauthorized modification or installation. TECHWHALE SOLUTIONS, INC.’s ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT TECHWHALE SOLUTIONS, INC.’s OPTION, EITHER (A) REFUND OF THE PRICE PAID UPON RETURN OF SOFTWARE TO TECHWHALE SOLUTIONS, INC. OR (B) MODIFICATION OR REPLACEMENT OF SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY, PROVIDED YOU HAVE OTHERWISE COMPLIED WITH THIS AGREEMENT. TECHWHALE SOLUTIONS, INC. MAKES NO WARRANTIES WITH RESPECT TO: (A) SERVICES; (B) SOFTWARE WHICH IS LICENSED TO YOU FOR A LIMITED TERM OR LICENSED AT NO COST; OR (C) EXPERIMENTAL BETA CODE; ALL OF WHICH ARE PROVIDED “AS IS.”

4.2 THE WARRANTIES SET FORTH IN THIS SECTION 4 ARE EXCLUSIVE. NEITHER TECHWHALE SOLUTIONS, INC. NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SOFTWARE OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. TECHWHALE SOLUTIONS, INC. AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.

5. LIMITATION OF LIABILITY. EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE LAW, IN NO EVENT SHALL TECHWHALE SOLUTIONS, INC. OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF TECHWHALE SOLUTIONS, INC. OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TECHWHALE SOLUTIONS, Inc.’s OR ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, TECHWHALE SOLUTIONS, INC. AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER.

6. LIFE ENDANGERING ACTIVITIES. NEITHER TECHWHALE SOLUTIONS, INC. NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF SOFTWARE IN ANY APPLICATION WHERE THE FAILURE OR INACCURACY OF THE SOFTWARE MIGHT RESULT IN DEATH OR PERSONAL INJURY.

7. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TECHWHALE SOLUTIONS, INC. AND ITS LICENSORS FROM ANY CLAIMS, LOSS, COST, DAMAGE, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF SOFTWARE AS DESCRIBED IN SECTION 6.

8. INFRINGEMENT.
8.1 TechWhale Solutions, Inc. will defend or settle, at its option and expense, any action brought against you alleging that Software infringes a patent or copyright or misappropriates a trade secret in the United States, Canada, Japan, or member state of the European Patent Office. TechWhale Solutions, Inc. will pay any costs and damages finally awarded against you that are attributable to the infringement action. You understand and agree that as conditions to TechWhale Solutions, Inc.’s obligations under this section you must: (a) notify TechWhale Solutions, Inc. promptly in writing of the action; (b) provide TechWhale Solutions, Inc. all reasonable information and assistance to defend or settle the action; and (c) grant TechWhale Solutions, Inc. sole authority and control of the defense or settlement of the action.

8.2 If an infringement claim is made, TechWhale Solutions, Inc. may, at its option and expense: (a) replace or modify Software so that it becomes noninfringing; (b) procure for you the right to continue using Software; or (c) require the return of Software and refund to you any license fee paid, less a reasonable allowance for use.

8.3 TechWhale Solutions, Inc. has no liability to you if infringement is based upon: (a) the combination of Software with any product not furnished by TechWhale Solutions, Inc.; (b) the modification of Software other than by TechWhale Solutions, Inc.; (c) the use of other than a current unaltered release of Software; (d) the use of Software as part of an infringing process; (e) a product that you make, use or sell; (f) any Beta Code contained in Software; (g) any Software provided by TechWhale Solutions, Inc.’s licensors who do not provide such indemnification to TechWhale Solutions, Inc.’s customers; or (h) infringement by you that is deemed willful. In the case of (h) you shall reimburse TechWhale Solutions, Inc. for its attorney fees and other costs related to the action upon a final judgment.

8.4 THIS SECTION 9 STATES THE ENTIRE LIABILITY OF TECHWHALE SOLUTIONS, INC. AND ITS LICENSORS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION BY ANY SOFTWARE LICENSED UNDER THIS AGREEMENT.

9. TERM. This Agreement remains effective until expiration or termination. This Agreement will immediately terminate upon notice if you exceed the scope of license granted or otherwise fail to comply with the provisions of Sections 1, 2, or 4. For any other material breach under this Agreement, TechWhale Solutions, Inc. may terminate this Agreement upon 30 days written notice if you are in material breach and fail to cure such breach within the 30- day notice period. If Software was provided for limited term use, this Agreement will automatically expire at the end of the authorized term. Upon any termination or expiration, you agree to cease all use of Software and return it to TechWhale Solutions, Inc. or certify deletion and destruction of Software, including all copies, to TechWhale Solutions, Inc.’s reasonable satisfaction.

10. EXPORT. Software is subject to regulation by local laws and United States government agencies, which prohibit export or diversion of certain products, information about the products, and direct products of the products to certain countries and certain persons. You agree that you will not export any Software or direct product of Software in any manner without first obtaining all necessary approval from appropriate local and United States government agencies.

11. RESTRICTED RIGHTS NOTICE. Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in the license agreement under which Software was obtained pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is TechWhale Solutions, Inc., 20547 Old Cutler Rd., Suite 207, Miami, Florida, 33189, USA.

12. AUDIT RIGHTS. With reasonable prior notice, TechWhale Solutions, Inc. shall have the right to audit during your normal business hours all records and accounts as may contain information regarding your compliance with the terms of this Agreement. TechWhale Solutions, Inc. shall keep in confidence all information gained as a result of any audit. TechWhale Solutions, Inc. shall only use or disclose such information as necessary to enforce its rights under this Agreement.

13. CONTROLLING LAW AND JURISDICTION. This Agreement shall be governed by and construed under the laws of the State of Florida, USA. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of Tampa, Florida. This section shall not restrict TechWhale Solutions, Inc.’s right to bring an action against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

14. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.

15. PAYMENT TERMS AND MISCELLANEOUS. You will pay amounts invoiced, in the currency specified on the applicable invoice, within 30 days from the date of such invoice. This Agreement contains the parties' entire understanding relating to its subject matter and supersedes all prior or contemporaneous agreements, including but not limited to any purchase order terms and conditions, except valid license agreements related to the subject matter of this Agreement (which are physically signed by you and an authorized agent of TechWhale Solutions, Inc.) either referenced in the purchase order or otherwise governing this subject matter. This Agreement may only be modified in writing by authorized representatives of the parties. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse. The prevailing party in any legal action regarding the subject matter of this Agreement shall be entitled to recover, in addition to other relief, reasonable attorneys' fees and expenses.
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