END USER LICENSE AGREEMENT
TRUE VISION ANALYTICS, LLC (“LICENSOR”) IS WILLING TO LICENSE THE ACCOMPANYING SOFTWARE AND DOCUMENTATION, IF ANY (“SOFTWARE”) TO THE PERSON OR ENTITY ACCESSING THIS SOFTWARE VIA LICENSOR’S AUTHORIZED WEBSITE OR OTHER DELIVERY MECHANISM (“LICENSEE”) ONLY IF LICENSEE OBTAINED THIS SOFTWARE FROM LICENSOR (DIRECTLY OR VIA APP MARKETPLACE FUNCTIONALITY SUCH AS THE ITUNES STORE OR ANDROID MARKETPLACE), AND ONLY UPON THE CONDITION THAT LICENSEE ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”). THE TERM “SOFTWARE” INCLUDES THE SOURCE AND/OR BINARY CODE VERSIONS OF THE SOFTWARE, AND ALL RELATED DOCUMENTATION AND TOOLS, TO THE EXTENT MADE AVAILABLE BY LICENSOR, ANY NEW VERSIONS, UPGRADES, PATCHES, ERROR CORRECTIONS, SUPPLEMENTS, LIBRARIES, OR ADD-ON COMPONENTS THAT LICENSOR MAY CONCURRENTLY OR LATER PROVIDE TO LICENSEE TO THE EXTENT SUCH ITEMS ARE NOT ACCOMPANIED BY A SEPARATE LICENSE AGREEMENT, AND any ideas, designs, concepts, techniques, discoveries, know-how, and inventions, whether or not patentable or copyrightable, that are embodied in any of the foregoing. BY ACCESSING, INSTALLING OR USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS AND CONDITIONS OF THIS EULA. IF LICENSEE IS NOT WILLING TO BE BOUND BY THIS EULA, LICENSEE MAY NOT ACCESS, INSTALL OR USE THE SOFTWARE.
The Software is Licensor confidential information protected by intellectual property laws and treaties and is licensed, not sold.
1. License Rights.
1.1 Subject to Licensee’s compliance with this EULA, Licensee is granted a non-sublicensable, non-transferable, and non-exclusive license to install and use the Software on any single personal desktop/laptop computer, or mobile computing device, on which the Software is intended to run, for Licensee’s internal or personal use. Any distribution of the Software is forbidden.
1.2 Licensee shall not (a) copy the Software except as required to load on to the device described in Section 1.1 above, and except for a single archive or backup copy; (b) distribute to or share use of the Software with any third party; or (c) or sublicense, rent, lease, commercially exploit or host, or otherwise monetize the Software.
1.3 Licensee shall not disclose or cause to be disclosed in whole or in part the Software or Evaluation Results defined in Section 2.3 below (“Protected Materials”) to any third party or use same except as specifically authorized by this EULA.
1.4 All rights not expressly granted in this Section 1.1 are reserved to Licensor. Licensee shall have no right or license other than the rights expressly granted in Section 1.1 above, and no other right or license shall be implied by conduct or otherwise. Except as expressly authorized in Section 1.1, Licensee shall not use, reproduce, modify, extend, enhance, or distribute the Software, in whole or in part. Licensor and its licensors retain all right, title and interest in the Software and associated intellectual property rights. The structure, sequence, organization and code of the Software are the valuable trade secrets and copyrighted confidential information of Licensor and its licensors. Licensee hereby acknowledges and agrees that the user interface, user experience, icons, presentation layer and elements, terminology, reports, layouts, and screen displays of or generated by the Software shall not be reproduced, distributed, or displayed except for the Licensee’s internal use and not for external use or exploitation.
1.5 Licensee hereby irrevocably transfers and assigns to Licensor any interest which may arise from any modification, derivative work, improvement, port, enhancement or extension of the Software and associated intellectual property rights (“Derivatives”), Licensee may have now or in the future. Alternatively, in the event the foregoing assignment is precluded by law or is otherwise ineffective, Licensee hereby grants to Licensor a fully paid-up, royalty-free, worldwide, non-terminable, unrestricted license in perpetuity to use, sell, offer to sell, import, reproduce, display, modify, improve, make derivative works of, distribute, assign, disclose and sublicense Derivatives created by Licensee.
1.6 In the event any Software is already in the possession or custody of Licensee, such item(s) shall be subject to the terms of this EULA, notwithstanding any pre-existing agreement or understanding between Licensee and Licensor with respect to such items. Licensor retains title to all copies of the Software.
2.1 The Software is licensed as a single product. The Software’s component parts shall not be separated for use on more than one computer.
2.2 Licensee shall not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code or other information from the Software, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; and (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Software; and (c) Licensor has not made such information available to Licensee (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by Licensee under this Section 2.2 may only be used by Licensee for the purpose described in this Section 2.2, and shall not be disclosed to any third party or used to create any software which is substantially similar to the Software.
2.3 Licensee agrees to provide any feedback, comments, ideas, requirements, benchmarks, suggestions, or improvements that Licensee may have, if any, to Licensor (“Evaluation Results”). Licensee agrees that Licensor may use in perpetuity any such Evaluation Results Licensee provides hereunder for Licensor’s business purpose, including for product support and development, without any obligation or payment to Licensee.
2.4 This EULA does not grant Licensee any rights in connection with any trademarks, trade dress, design rights, or servicemarks of Licensor.
2.5 Without prejudice to any other Licensor rights or remedies, this EULA shall automatically terminate if Licensee fails to comply with the terms and conditions of this EULA. In such event, Licensee immediately must destroy all copies and cease all use of the Software. Licensee acknowledges and agrees that breach of this EULA, or any unauthorized use, disclosure or distribution of the Protected Materials would cause irreparable harm to Licensor, the extent of which would be difficult to ascertain, and that Licensor shall be entitled to seek without limitation immediate injunctive relief in any court of competent jurisdiction under the applicable laws thereof.
3. Termination. This Agreement shall commence upon first download of the Software and shall continue until terminated. This Agreement shall automatically terminate upon violation of its terms by you. Further, Licensor may terminate without refund this Agreement in the event the Software is in Licensor’s reasonable judgment subject to the intellectual property rights of any other person or entity. Upon termination, Licensee shall promptly return to Licensor or destroy all copies of Protected Materials, and any items or materials containing all or any portion of same. All rights and licenses granted to Licensee under this EULA shall terminate upon such termination. Rightful and lawful termination of this EULA by either party, or expiration under the terms hereof, shall not give rise to the right for the non-terminating party, or to either party in the case of expiration, to recover damages or to indemnification of any nature. The rights of Licensor under this Section 3 are in addition to any rights or remedies provided under law or this EULA.
4. Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS SUPPLIERS PROVIDE THE SOFTWARE TO LICENSEE AS IS AND WITH ALL FAULTS, AND LICENSOR AND ITS SUPPLIERS DISCLAIM WITH RESPECT TO THE SOFTWARE ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATED TO: TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS, LACK OF DEFECTS, NEGLIGENCE OR WORKMANLIKE EFFORT, OR CORRESPONDENCE TO DESCRIPTION. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH LICENSEE. LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES CAUSED IN WHOLE OR IN PART BY THE SOFTWARE. Licensor may but is under no obligation to provide any services (such as upgrades, bug fixes, new versions, enhancements, or support, including telephone or email support or helpdesk services) of any kind with respect to the Software. Licensor is under no obligation to further the development of the Software. Licensee acknowledges the Software may have defects or deficiencies that may not be corrected by Licensor. Licensee hereby waives any claims or damages arising from use thereof or from any claims of incompatibility.
5. Limitation of Liability. Each user’s and Licensee’s use of the Software is at his or her sole risk. Software is provided on an “as is” and “as available” basis and Licensor assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store or retain any content, data, or personalization settings. Each user and Licensee will be solely responsible for any damage to his or her computer system or loss of data that results from use of the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE AND USER DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) In no event shall Licensor’s liability to Licensee, whether in contract, tort (including negligence), or otherwise, exceed the license fee paid by Licensee for the Software, if any, or, if none, US$40; and (c) The foregoing limitations in this section 5 shall apply even if any remedy fails of its essential purpose.
6. Indemnity. Licensee shall defend, indemnify, release and hold harmless Licensor, its suppliers, and all officers, directors, employees, consultants, agents, and representatives of any of the foregoing (collectively “Indemnified Parties”) from and against any and all claims (including third party claims), losses, liability, damages, and/or costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with: (a) Licensee’s unauthorized access to or use of, the Software, (b) Licensee’s violation of these Terms, (c) Licensee’s use of the Software or conduct engendered thereby, or (d) Licensee’s actual or alleged infringement, of any intellectual property or other right of any person or entity.
7. Export Regulations. Software, including technical data, may be subject to import/export control laws and regulations. Licensee agrees to comply strictly with all applicable laws, rules or regulations in respect of the evaluation of the Software, including all export control or import laws and regulations of any relevant jurisdiction and to obtain licenses to export, re-export or import the Software, as may be required after delivery to Licensee.
8. Assignment. This EULA shall not be assigned or transferred, or its rights or obligations assigned or delegated, by Licensee, in whole or in part, including by way of merger or reorganization, acquisition or otherwise, without the prior written consent of Licensor. Any assignment made in violation of this section shall be void. Licensor shall be free to assign this EULA without the necessity for consent.
9. Restricted Rights. The use, duplication or disclosure by the U.S. government of technical data, computer software and documentation licensed hereunder is subject to the restrictions as set forth in FAR 52.22714(g) (2), FAR 52.22719, DFARS 252.2277015(b), and DFARS 227.72023(a), or other like or successor provisions, as applicable, and are provided under “Restricted Rights”.
10. Governing Law and Dispute Resolution. This EULA and all related disputes shall be governed by and construed under the laws of Virginia and controlling US law. The choice of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Computer Information Transactions Act, and the American Law Institute’s Principles of the Law of Software Contracts, shall not apply. Any disputes between the parties arising out of or related to this EULA or the Software (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) shall be referred to and finally settled by binding arbitration before the American Arbitration Association (“AAA”) in accordance with the Rules of Arbitration of the AAA in effect at the time of arbitration except as inconsistent with this section. The arbitration shall be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings shall be held in Richmond, Virginia. The arbitrator shall apply the law specified herein. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, shall be kept confidential. Except as required by law, no party shall make any public announcements with respect to the proceeding or the award, except as required to enforce same. By entering into this EULA, the parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this section shall preclude the right and ability to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers’ fees and costs, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim.
11. Severability. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, such provisions shall not affect the validity of the balance of the EULA, and such provisions are herewith waived or reformed to the extent necessary for the EULA to be otherwise enforceable in such jurisdiction.
12. Integration. This EULA is the entire agreement between Licensee and Licensor relating to the Software and supersedes all prior or contemporaneous oral or written agreements, communications, proposals and representations with respect to its subject matter. No modification to the EULA will be binding, unless in writing and signed by a duly authorized representative of Licensor.