Software End-User License Agreement
This software end user license agreement is a binding agreement between Wholster Systems, LLC (“Wholster”) and you, as the person installing and using the software applications offered by Wholster (the “Software”, defined below). If you are entering into this agreement on behalf of a business organization, you hereby represent that you have the authority to enter into this agreement on that organization’s behalf and warrant that that organization, including its employees, agents, representatives and subcontractors who will use the Software (each an “Authorized User”), will be bound by its terms and conditions upon your entry into it. Throughout this agreement, the terms “You” and “Your” apply to you personally, and if applicable, your organization and all Authorized Users.
By accessing, installing or using the Software, You (a) acknowledge that You have read and understand this agreement, (b) represent that You are of legal age to enter into this agreement, and (c) accept the terms and conditions of this agreement. If You do not agree to the terms and conditions of this agreement, then You are not authorized to access, install or use the Software and Wholster is under no obligation to You whatsoever.
1. License Grant and Scope
Subject to payment of any applicable fees and Your acceptance of and compliance with the terms and conditions in this agreement, Wholster hereby grants to you a non-exclusive, non-transferable, non-sublicensable right to access, install and use the Software, which comprises software applications downloadable in object code form from Google Play and the Apple App Store. during the Term (defined below). Your hereby agree that Your use will be limited to the solicitation of buyers of wholesale real estate.
2. Use Restrictions
You shall not use the Software for any purpose beyond that defined in Section 1. You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part;
(iv) remove or otherwise change any proprietary notices from the Software or any of its access portals or packaging; or
(v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any law.
3. Reservation of Rights
Wholster reserves all rights not expressly granted to You in this agreement. Except for the limited rights and licenses expressly granted under this agreement, nothing in this agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party, any intellectual property rights or other right, title, or interest in or to the Software, in whole or in part, or any and all intellectual property provided to You or any Authorized User under this agreement (collectively, “Wholster’s Intellectual Property”).
Notwithstanding anything to the contrary in this agreement, Wholster may temporarily suspend Your access to any or all Software if:
(i) Wholster reasonably determines that (A) there is a threat or attack on any of Wholster’s Intellectual Property; (B) Your use of Wholster’s Intellectual Property disrupts or poses a security risk to Wholster or to any other customer or vendor of Wholster; (C) You are using the Software or Wholster’s Intellectual Property for unauthorized, fraudulent or illegal activities; (D) You have ceased to continue Your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Wholster’s provision of the Software to You is prohibited by law;
(ii) any vendor of Wholster has suspended or terminated Wholster’s access to or use of any third-party services or products required to enable You to access the Software; or
(iii) You fail to pay fees You owe to Wholster. Wholster shall use reasonable efforts to provide written notice of any service suspension to You and to provide updates regarding resumption of access to the Software following any service suspension. Wholster shall use reasonable efforts to resume providing access to the Software as soon as practical after the event giving rise to the service suspension is cured. Wholster assumes no liability for any loss You may incur as a result of a service suspension.
5. Your Responsibility for Use of Software
You are responsible and liable for the installation and all uses of the Software. You are responsible for all of Your acts and omissions, including any breach of this agreement. You shall make all Authorized Users aware of the terms and conditions of this agreement and shall bind all Authorized Users to compliance with the same. Any data or other content input by You in order to use the Services should be saved and archived by You. Wholster is not responsible for the accuracy, integrity or loss of Your data. You are also responsible for maintaining secure passwords in connection with use of the Services. Wholster will not be responsible for any loss or liability caused by Your failure to maintain your account credentials securely.
6. Use with Mobile Devices
Use of the Services may be available through a compatible mobile device that requires Internet access and specialized software not provided by Wholster. You are solely responsible for meeting any such requirements, including any message and data rates, as well as the terms and conditions of Your agreement with your mobile service providers. Wholster makes no warranty or representation as to Your ability to access the Services from a mobile device, the security of Your data transmissions over the Internet, or the confidentiality of any such data transmitted.
8. Fees and Payment
You shall pay the fees required by Wholster in US dollars in accordance with the payment requirements imposed by Wholster. All fees and other amounts payable by you under this agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Wholster’s income.
9. Intellectual Property Rights
(a) Wholster’s Intellectual Property
You acknowledge that:
(i) the Software is licensed, not sold to You and You do not have under or in connection with this agreement any ownership interest in the Software, or in any related intellectual property rights;
(ii) Wholster is the sole and exclusive owner of all right, title, and interest in and to the Software, including all intellectual property rights, in and to the Wholster’s Intellectual Property.
(b) Your Data
Wholster acknowledges that you own all right, title, and interest in and to the information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of You through the Services (“Customer Data”). You hereby grant to Wholster a non-exclusive, royalty-free, worldwide license to use, reproduce, and display the Customer Data and perform all acts with respect to the Customer Data, solely for the purpose of providing the Software to you.
(c) Your Cooperation and Notice of Infringement.
You shall, during the Term:
You shall, during the Term:
(i) take all reasonable measures to safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access;
(ii) at Wholster’s expense, take all such steps as Wholster may reasonably require to assist Wholster in maintaining the validity, enforceability and Wholster’s ownership of its intellectual property rights in the Software.
(iii) promptly notify Wholster in writing if You become aware of: (1) any actual or suspected infringement, misappropriation or other violation of Wholster’s intellectual property rights in or relating to the Software; or (2) any claim that the Software, including any production, use, marketing, sale or other disposition of the Software, in whole or in part, infringes, misappropriates or otherwise violates the intellectual property rights or other rights of any nonparty; and
(iv) fully cooperate with and assist Wholster in all reasonable ways in the conduct of any action by Wholster to prevent or abate any actual or threatened infringement, misappropriation or violation of Wholster’s rights in, or attempt to resolve any actions relating to, the Software.
10. Term and Termination
This agreement is effective upon Your acceptance of this agreement and payment of all applicable fees and will remain in effect as long as those conditions continue to be met. Wholster may terminate this agreement if you fail to comply with the terms and conditions of this agreement or make timely payments hereunder. Upon termination of this agreement, you must immediately stop using the Software and uninstall any copies You have installed. Sections 8, 10, 11, 12, 14 will survive the termination of this Agreement.
11. Limitations of Liability
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, WHOLSTER WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR THE SOFTWARE, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OF OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, CORRUPTION, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WHOLSTER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) IN NO EVENT WILL WHOLSTER’S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, YOUR INSTALLATION OR USE OF THE SOFTWARE UNDER ANY LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT OF FEES PAID FOR USE OF THE SOFTWARE, AND DOCUMENTATION PURSUANT TO THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. TO THE EXTENT THAT THE FEES WERE PAID ON AN ANNUAL BASIS, THE AMOUNT OF FEES PAID WILL BE PRORATED TO THE EQUIVALENT AMOUNT OF THE FEES PAID OVER A THREE-MONTH PERIOD PRECEDEING THE EVENT GIVING RISE TO THE CLAIM. EVEN IF WHOLSTER ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLY, EVEN IF THIS REMEDY FAILS ITS ESSENTIAL PURPOSE.
12. Disclaimer of Warranties
(a) EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SOFTWARE IS PROVIDED “AS-IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WHOLSTER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WHOLSTER PROVIDES NO WARRANTY AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE. WHOLSTER IS NOT OBLIGATED TO CORRECT ANY SUCH ERRORS OR DEFECTS.
(B) WHOLSTER IS NOT IN THE BUSINESS OF PROVIDING REAL ESTATE BROKERAGE OR OTHER PROFESSIONAL SERVICES OR ADVICE. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE IS NOT A SUBSTITUTE FOR THE ADVICE OF A COMPETENT PROFESSIONAL. YOU FURTHER ACKNOWLEDGE AND AGREE THAT LAWS VARY FROM STATE TO STATE AND CHANGE OVER TIME, AND THAT YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS IN YOUR USE OF THE SOFTWARE.
You agree to defend and indemnify Wholster and its successors, assigns, officers, directors, representatives, employees, and agents from and against any and all losses and liabilities resulting from or arising out of (a) your use of the Software; or (b) any breach of this Agreement.
14. Sole Remedy
Your sole and exclusive remedy for any failure or non-performance of the Software, including any associated software or other materials supplied in connection with such Software, shall be for Wholster, in its sole discretion, to refund the applicable fees paid, use reasonable efforts to cure the failure or non-performance, or both.
(a) Entire Agreement
This agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to its subject matter and supersedes all other understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Wholster reserves the right to modify this agreement from time to time, and you hereby acknowledge that this agreement serves as notice of any such modification.
(b) Force Majeure
In no event shall either party be liable to the other, or be deemed to have breached this agreement, for any occurrence, the non-occurrence of which was a basic assumption under which this agreement was executed.
No failure to exercise or delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this agreement and any applicable purchase or other terms, the terms of this agreement shall govern.
If any provision of this agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable in such jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) Governing Law; Submission to Jurisdiction
This agreement is governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Maryland. Any legal suit, action, or proceeding arising out of or related to this agreement or the licenses granted hereunder may be instituted exclusively in the federal courts of the United States or the courts of the State of Maryland, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
You shall not assign or otherwise transfer and of Your rights or obligations or performance under this agreement without Wholster’s prior written consent, which consent Wholster may give or withhold in its sole discretion. No assignment, delegation, or transfer will relieve you of any of your obligations or performance under this agreement. Any purported assignment, delegation, or transfer in violation of this section is void. This agreement is binding on and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(g) US Government Rights
The Software is commercial computer software as defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Last modified April 26, 2019.