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CRA End User Subscription License Agreement

The following End User License Agreement (this “Agreement”) applies to the following Intelligent Visibility, Inc. (“IVI”) software products: Luminous Cloud and Call Record Analyzer (the “Licensed Software”) and sets forth the terms and conditions under which the applicable Licensed Software will be provided to “you”, as the end user (the terms “you” and “your” shall refer to you and all of the end users accessing or using the Licensed Software by or through you). You will be deemed to have accepted this Agreement and will be bound by its terms if you indicate your affirmative acceptance of these terms by electronic “click through” for use of the applicable Licensed Software.

 

​            License.  The license granted to you herein is a non-exclusive, non-transferable, non-sublicensable license to access and use the applicable “Licensed Software”, solely through web portals. In no event shall the Licensed Software be disclosed, made available to or used for the benefit of any third party; sold, rented, assigned, leased or otherwise transferred or disposed of; or commercially exploited or marketed in any way, with or without charge, by you or on your behalf or with your authorization or consent. The license granted hereunder shall be limited to the number of users specified in your subscription and for which the applicable license fees have been paid by you to IVI.  Your access to and use of the applicable Licensed Software shall be subject to the terms and conditions set forth herein, which terms and conditions may be amended by IVI from time to time in its sole discretion.  You shall not copy, modify, translate, decompile, disassemble or otherwise reverse engineer, or otherwise determine source code or protocols from, the executable code of the applicable Licensed Software, or create any derivative works based upon the applicable Licensed Software. You also agree that any works created in violation of this Agreement are derivative works and, as such, you agree to assign, and you do hereby assign, all right, title and interest therein to IVI. You shall not modify, alter or delete any copyright, trademark or other proprietary notices placed upon or contained within the applicable Licensed Software. You shall not avoid, circumvent or disable any security device, procedure, protocol or mechanism that is part of or used in connection with the applicable Licensed Software, including any digital rights management (DRM). You shall not export from the United States the applicable Licensed Software, directly or indirectly, separately or as part of a system.

Ownership of the Licensed Software.  You acknowledge and agree that IVI has developed, at IVI’s expense, the Licensed Software, and as between you 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. You agree 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. You 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.  You 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 you in this Agreement.

Updates.  IVI will provide, at no charge, any updates to the Licensed Software. Except as expressly set forth herein, IVI will have no obligation to update the Licensed Software.

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, one of your end users of the applicable Licensed Software) materially breaches any term, provision, warranty or representation herein 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, you will: (a) cease using the applicable Licensed Software, (b) return, purge or destroy (as directed in 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; and (d) not be entitled to a refund of any fees previously paid. If you are 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 applicable 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 you regarding the use of the Licensed Software), “Ownership of Licensed Software”, “Confidential Information”, “WARRANTIES AND WARRANTY DISCLAIMER”, “LIMITATION OF LIABILITY”, “Severability”, “Governing Law; Disputes”, “No Waiver/Modification”, “Construction”, “Relationship of the Parties”, “No Third Party Beneficiaries”, and “Headings”.

Confidential Information.  You acknowledge that, in connection with this Agreement and the applicable Licensed Software, IVI has provided and will provide to you and your 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”). You agree, during the term of this Agreement and thereafter for a period of twenty (20) years, (a) not to use Confidential Information for any purpose except that during the term of this Agreement you may use Confidential Information applicable to 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 your contemporaneous written records: (w) is as of the time of its disclosure or thereafter becomes publicly available through no fault of you or your end users; (x) is rightfully known by you prior to the time of its disclosure to you hereunder; (y) has been independently developed by you 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. YOU HAVE AND WILL HAVE ALL RIGHTS, TITLES, LICENSES, PERMISSIONS AND APPROVALS NECESSARY TO ENTER INTO AND PERFORM YOUR OBLIGATIONS UNDER THIS AGREEMENT.

 

THE LICENSED SOFTWARE AND ANY AND ALL SERVICES PROVIDED IN CONNECTION WITH THE LICENSED SOFTWARE 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 (EVEN IF SUCH PURPOSE OR USE IS KNOWN BY IVI), AND ANY WARRANTY ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR ANY IMPLIED WARRANTIES OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION.  YOU AGREE THAT YOU ASSUME RESPONSIBILITY FOR SELECTING THE LICENSED SOFTWARE AND ANY SERVICES TO BE PROVIDED IN CONNECTION WITH THE LICENSED SOFTWARE, TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE OF AND RESULTS OBTAINED FROM THE LICENSED SOFTWARE AND ANY SERVICES PROVIDED IN CONNECTION WITH THE LICENSED SOFTWARE. IVI MAKES NO WARRANTY THAT THE LICENSED SOFTWARE OR ANY SERVICES PROVIDED IN CONNECTION WITH THE LICENSED SOFTWARE WILL BE ACCURATE, COMPLETE, ERROR-FREE OR FREE FROM INTERRUPTIONS, BUGS OR OTHER DEFECTS OR FAILURES.  IVI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE UPTIME OF THE LICENSED SOFTWARE OR ANY SYSTEM SUPPORTING THE APPLICABLE LICENSED SOFTWARE.

Limitation of Liability.  IN NO EVENT SHALL IVI BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSSES, EXPENSES OR DAMAGES RESULTING FROM A SECURITY BREACH, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT IVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL IVI’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED, AND YOU AGREE TO RELEASE ALL CLAIMS AGAINST IVI (AND ANY OF IVI’S LIABILITY) IN EXCESS OF THE AMOUNTS PAID BY YOU TO IVI DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF ONE OR MORE SUCH CLAIMS SHALL NOT RAISE OR EXTEND THIS LIMIT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. You agree that the foregoing limitations of liability constitutes a material inducement for IVI to enter into this Agreement.

Indemnification.  IVI shall defend, indemnify and hold you harmless from and against any third-party claim of United States copyright or trade secret infringement relating to the Licensed Software, provided that you promptly notify IVI in writing of any such claim and allow IVI to control (at IVI’s expense), and fully cooperate with IVI in, the defense of any such claim and all related settlement negotiations. In the event an injunction is sought or obtained against your use of the Licensed Software as a result of any such infringement claim, IVI may, at its sole option and expense, (a) procure for you 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, you 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 you of this Agreement and/or (ii) any infringement claim (including attorneys’ fees and costs of appeal) arising out of your 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; Alerts.  In connection with the maintenance of any of your data 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.  IVI shall have the authority to access and use your data for analytic purposes and to assist IVI in troubleshooting and resolving issues concerning use of the Licensed Software. IVI has no obligation to maintain any of your data following termination or expiration of this Agreement.  Any alerts or notices provided by or through the Licensed Software are made on a best efforts basis and do not, and will not, reflect a real-time guarantee; and IVI makes no representation or warranty with respect to the timeliness of such alerts or notices.

Force Majeure.  Except with respect to your 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.  You may not assign this Agreement or any of your 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. 

 

Governing Law; 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 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.  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. 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 you and IVI and your and IVI’s 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.