End User License Agreement
Last Updated: November 13, 2020
Ownership of Licensed Software. Client acknowledges and agrees that IVI has developed, at IVI’s expense, the Licensed Software, and as between Client and IVI, IVI is the exclusive owner of and retains all rights, title and interests, including all patent rights, copyrights, trademarks, trade secrets and other intellectual property rights, in and to the Licensed Software, and any portion thereof, including any copy or derivative work of the Licensed Software (or any portion thereof) and any update thereto. Client agrees to take any action reasonably requested by IVI to evidence, maintain, enforce or defend the foregoing, provided that any costs associated therewith shall be borne by IVI. Client shall not take any action to jeopardize, limit or interfere in any manner with IVI’s ownership of, and rights with respect to, the Licensed Software, or any copy or derivative work thereof or update thereto. Client shall have only those rights in and to the Licensed Software, and any copy or derivative work thereof or update thereto, that are expressly granted to Client hereunder.
Termination. Without prejudice to any rights either party may have under this Agreement, in law, equity or otherwise, each party shall have the right to terminate this Agreement if (i) the other party (or in the case of IVI, a Client user of the Licensed Software) materially breaches any term, provision, warranty or representation under this Agreement and fails to correct such breach within thirty (30) days of its receipt of written notice of such breach or (ii) the other party files a petition for bankruptcy, or a judgment of bankruptcy is entered against the other party.
Effect of Termination. Upon any termination or expiration of this Agreement, Client will: (a) cease using the Licensed Software, (b) return, purge or destroy (as directed in writing by IVI) all copies of the Licensed Software, as applicable, and, if so requested, certify to IVI in writing that such surrender or destruction has occurred; (c) pay to IVI any fees due and owing hereunder; and (d) not be entitled to a refund of any fees previously paid. If Client is in default, IVI reserves the right, in addition to all other rights and remedies it may have, to withhold further performance of its obligations under this Agreement and to repossess or disable access to the Licensed Software, and IVI will not have any liability with respect to any such repossession or disabling of access. Upon any expiration or termination of this Agreement the following paragraphs survive any such expiration or termination of this Agreement: “License” (to the extent related to restrictions imposed on Client regarding the use of the Licensed Software), “Ownership of Licensed Software”, “Confidential Information”, “WARRANTIES AND WARRANTY DISCLAIMER”, “LIMITATION OF LIABILITY”, “Indemnification”, “Severability”, “Disputes”, “No Waiver/Modification”, “Construction”, “Relationship of the Parties”, “No Third Party Beneficiaries”, “Headings” and “Complete Agreement”.
Confidential Information. Client acknowledges that, in connection with this Agreement and the Licensed Software, IVI has provided and will provide to Client and its users certain sensitive and/or proprietary information, including software, source code, assessment instruments, research, designs, methods, processes, customer lists, training materials, product documentation, and trade secrets, in whatever form (“Confidential Information”). Client agrees, during the term of this Agreement and for a thereafter for a period of five (5) years, (a) not to use Confidential Information for any purpose other than use of the Licensed Software in accordance with the license granted hereunder, and (b) to take all steps reasonably necessary to maintain and protect the Confidential Information of IVI in the strictest confidence. Confidential Information shall not include information which, as evidenced by Client’s contemporaneous written records: (w) is as of the time of its disclosure or thereafter becomes publicly available through no fault of Client; (x) is rightfully known by Client prior to the time of its disclosure to Client hereunder; (y) has been independently developed by Client without any use of Confidential Information; or (z) is subsequently learned from a third party not under any confidentiality obligation.
WARRANTIES AND WARRANTY DISCLAIMER.
EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT AND ABILITY TO ENTER INTO THIS AGREEMENT. THIS AGREEMENT EVIDENCES THE VALID, BINDING AND ENFORCEABLE OBLIGATION OF EACH PARTY, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, LIQUIDATION, RECEIVERSHIP, MORATORIUM, REORGANIZATION, OR OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF THE RIGHTS OF CREDITORS IN A PROCEEDING IN EQUITY OR AT LAW. CLIENT HAS AND WILL HAVE ALL RIGHTS, TITLES, LICENSES, PERMISSIONS AND APPROVALS NECESSARY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
THE LICENSED SOFTWARE, SUPPORT SERVICES AND TRAINING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND BY IVI. IVI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO TITLE, MERCHANTABILITY, DESIGN, CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR WORKMANSHIP, COMPLIANCE WITH SPECIFICATIONS OR APPLICABLE LAW, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
CLIENT AGREES THAT CLIENT ASSUMES RESPONSIBILITY FOR SELECTING THE LICENSED SOFTWARE, SUPPORT SERVICES, AND TRAINING SERVICES TO ACHIEVE CLIENT’S INTENDED RESULTS, AND FOR THE USE OF AND RESULTS OBTAINED FROM THE LICENSED SOFTWARE, SUPPORT SERVICES OR TRAINING SERVICES.
IVI MAKES NO WARRANTY THAT THE LICENSED SOFTWARE, SUPPORT SERVICES OR TRAINING SERVICES WILL BE ACCURATE, COMPLETE, ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR WILL MEET CLIENT’S REQUIREMENTS.
LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY FOR DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE BY A PARTY OR IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE OF CLIENT’S OR ANY USER’S DIRECT DAMAGES UP TO THE FEES PAID BY CLIENT TO IVI HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST DATA OR LOST BUSINESS, OR ANY OTHER INDIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
Indemnification. IVI shall defend, indemnify and hold Client harmless from and against any third-party claim of United States copyright or trade secret infringement relating to the Licensed Software, including reasonable attorney’s fees associated therewith, provided that Client promptly notifies IVI in writing of any such claim and allows IVI to control (at IVI’s expense), and fully cooperates with IVI in, the defense of any such claim and all related settlement negotiations. In the event an injunction is sought or obtained against Client’s use of the Licensed Software as a result of any such infringement claim, IVI may, at its sole option and expense, (a) procure for Client the right to continue using the affected Licensed Software, or (b) replace, modify, or remove the affected Licensed Software so that it does not infringe. Notwithstanding the foregoing, IVI shall have no liability for, and, to the extent permitted by applicable law, Client shall indemnify and hold IVI, its officers, directors, shareholders, employees, and agents harmless from and against, (i) any claim (including attorneys’ fees and costs of appeal) resulting from or related to a breach by Client of this Agreement and/or (ii) any infringement claim (including attorneys’ fees and costs of appeal) arising out of Client’s use, modification, operation or combination of the Licensed Software with non-IVI programs, data, software or documentation if such infringement would have been avoided but for such use, modification, operation or combination. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF EACH PARTY, AND EACH PARTY’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIMS BROUGHT BY THIRD PARTIES.
Data. In connection with the maintenance of any data of Client required to be maintained by IVI in connection with this Agreement, IVI shall act with reasonable care, using the same degree of skill and care that it exercises in connection with its own data.
Force Majeure. Except with respect to Client’s obligation to make timely payments, neither party shall be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, labor disputes, legal or regulatory requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or interruptions in power, communications, satellites or the Internet, or other causes beyond its reasonable control.
Severability. If one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial authority to limit or reduce such provision or provisions, so as to be enforceable to the maximum extent compatible with applicable law.
Assignment. Client may not assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of IVI, said consent not to be unreasonably withheld. This Agreement shall bind each party and its successors and permitted assigns.
Disputes. This Agreement is to be construed in accordance with and governed by the internal laws of the State of North Carolina, without giving effect to any choice-of-law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of North Carolina to the rights and duties of the parties. To the extent any suit or other action is brought that arises from or is related to this Agreement, it shall be brought in a state or federal court sitting in Guilford County in the State of North Carolina. Each party hereby waives any claim or defense that the forum is not convenient or proper. Each party agrees that the court shall have personal jurisdiction over it and consents to service of process by any means authorized by North Carolina law.
No Waiver/Modifications. No course of dealing, course of performance or failure of either party to enforce any term, right or condition of this Agreement shall be construed as a waiver of any other term, right or condition. No waiver or breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or any other provision. Alterations, deletions, and/or additions to the terms and conditions of this Agreement may only be made by the mutual written consent of the parties. Neither the course of conduct between the Parties nor any trade practice shall act to modify the provisions of this Agreement, except as expressly stated herein.
Construction. This Agreement has been negotiated by the parties and shall be interpreted fairly in accordance with its terms and without any construction in favor of or against any party. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The terms “this Agreement,” “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or other portion hereof. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Unless otherwise qualified, any use of the term “discretion” in this Agreement shall mean the sole and absolute discretion of the applicable person or entity. Except as otherwise specified, references herein to “days” means calendar days, and “business days” means any days between and including Monday through Friday, exclusive of federal holidays. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.”
Relationship of the Parties. IVI shall be considered to be an independent contractor and as such shall be wholly responsible for the work to be performed and for the supervision of its employees. IVI represents that it has, or will secure at its own expense, all personnel required in performing the services under this Agreement. Such employees shall not be employees of, or have any individual contractual relationship with Client. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
No Third Party Beneficiaries. The provisions of this Agreement are intended solely for the benefit of Client and IVI and their respective successors and permitted assigns, and the parties do not intend to confer third-party beneficiary rights upon any other person or entity.
Notices. All notices, consents, or other communications required or permitted to be given pursuant to this Agreement to be effective shall be in a “writing” (as defined herein) “signed” (as defined herein) by the giving party. Such communications shall be deemed given, delivered, and received on the date of delivery to the address given to the other party. For purposes of this Agreement, the terms “writing”, “written” or any variations thereof shall include, without limitation, an electronic record (as defined in the North Carolina Uniform Electronic Transactions Act, as amended from time to time, the “NCUETA”) so long as such electronic record complies with the NCUETA, and the term “signed” shall include, without limitation, an electronic signature (as defined in the NCUETA) so long as such electronic signature complies with the provisions of the NCUETA.
Headings. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of such paragraphs and shall not be given any consideration in the construction of this Agreement.
Complete Agreement. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement. This Agreement, and those exhibits and attachments expressly incorporated by reference herein, contain the entire understanding of the parties with respect to the subject matter hereof, and supersede any and all related prior understandings, agreements, representations, negotiations and discussions, whether oral or written. All promises, requirements, terms, conditions, provisions, representations, guarantees, and warranties contained herein shall survive the contract expiration or termination date unless specifically provided otherwise herein, or unless superseded by applicable federal or state statutes of limitation.