Luminous End User License Agreement
License
The license granted to Client herein is a non-exclusive, non-transferable, non-sublicensable license to
access and use the “Licensed Software", solely through web portals. In no event shall the 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 or on behalf of Client or with Client’s authorization or consent. The license granted hereunder shall be limited to the number of users specified herein and for which the applicable license fees have been paid to IVI by Client. Client’s access to and use of the Licensed Software shall be subject to the terms and conditions of IVI’s standard end-user license agreement and/or terms of use (which may be amended by IVI from time to time), in addition to the terms and conditions of this Agreement. Client shall not copy, modify, translate, decompile, disassemble or otherwise reverse engineer, or otherwise determine source code or protocols from, the executable code of the Licensed Software, or create any derivative works based upon the Licensed Software. Client also agrees that any works created in violation of this paragraph are derivative works and, as such, Client agrees to assign, and hereby does assign, all right, title and interest therein to IVI. Client shall not modify, alter or delete any copyright, trademark or other proprietary notices placed upon or contained within the Licensed Software. Client shall not avoid, circumvent or disable any security device, procedure, protocol or mechanism that is part of or used in connection with the Licensed Software, including any digital rights management (DRM). Client shall not export
from the United States the Licensed Software, directly or indirectly, separately or as part of a system.
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.
Updates.
IVI will provide to Client, at no charge, any updates to the Licensed Software that IVI provides to all of
its other licensees at no charge. Except as expressly set forth in this Agreement, IVI will have no obligation to
update or provide to Client any updates to the Licensed Software.
Terms of Use and Privacy Policies.
Client will designate an authorized representative with the authority, to review
and agree to all end-user license agreements and terms of use and acknowledge all privacy policies associated with
the Licensed Software (the “Authorized Administrator Signatory”). All access to and use of the Licensed
Software is conditioned upon the review of and agreement to all applicable end-user license agreements and terms
of use, and the review and acknowledgement of all applicable privacy policies, by the Authorized Administrator
Signatory.
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.