License Agreement
This License Agreement (the "Agreement") is a binding agreement between the purchaser of the DisplayNet Server® system manufactured by DVIGEAR and its Authorized Users (as defined below) ("Licensee" or "You") and DVIGEAR, INC. ("DVIGEAR"), a corporation of the state of Georgia having a business address of 1059 Triad Court, Suite 8, Marietta, Georgia 30062.
DVIGEAR PROVIDES THIS SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON CONTAINED BELOW, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DVIGEAR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF DVIGEAR'S SOFTWARE.
1. Definitions
For purposes of this Agreement, the following terms have the following meanings:
1.1 "Authorized User"
means a lawful user of the DisplayNet Server® system manufactured by DVIGEAR including, the DisplayNet Manager® SDVoE Controller Software.
1.2 "Documentation"
means user manuals, technical manuals and any other materials provided by DVIGEAR, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
1.3 "Intellectual Property Rights"
means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.4 "Person"
means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
1.5 "Software"
means the software program(s) for the DisplayNet Server® system including, the DisplayNet Manager® SDVoE Controller Software received from DVIGEAR as part of the DisplayNet® connectivity device purchased from DVIGEAR.
1.6 "Term"
has the meaning set forth in Section 9.
1.7 "Third Party"
means any Person other than Licensee or DVIGEAR.
1.8 "Update"
has the meaning set forth in Section 6(b).
2. License Grant and Scope
Subject to and conditioned upon Licensee's strict compliance with all terms and conditions set forth in this Agreement, DVIGEAR grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Software and Documentation in connection with the DisplayNet Server® system manufactured by DVIGEAR solely by and through Licensee's Authorized Users and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement.
3. Use Restrictions
Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use the Software or Documentation beyond the scope of the license granted under Section 2;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Software or Documentation unless such Person has agreed to abide by the terms and conditions of this Agreement;
(c) copy, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) except as expressly set forth in Section 13(e), rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
(h) use the Software or Documentation in violation of any law, regulation or rule; or
(i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to DVIGEAR's commercial disadvantage.
4. Responsibility for Use of Software
Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5. Compliance Measures
(a) The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
(b) Upon DVIGEAR's written request, Licensee will conduct a review of its Authorized Users use the Software and verify to DVIGEAR that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance, Licensee will immediately remedy such noncompliance. Licensee will cooperate with DVIGEAR and provide any necessary assistance in order for DVIGEAR to evaluate and remedy any noncompliance with this Agreement.
(c) If DVIGEAR has reason to believe that Licensee is in breach of this Agreement, DVIGEAR may audit Licensee's use of the Software to ensure Licensee's compliance with this Agreement by providing five days' prior notice to Licensee. Licensee agrees to cooperate with DVIGEAR's personnel conducting the audit and provide all reasonable access to records, systems, equipment, information and personnel in order for DVIGEAR to verify Licensee's compliance with this Agreement. Any information requested by DVIGEAR will be limited to information directly related to the Licensee's use of the Software. DVIGEAR may only conduct an audit during Licensee's normal business hours and in a manner that does not unreasonably interfere with the Licensee's business operations.
(d) If an audit determines that the Licensee's use of the Software exceeds or exceeded the use permitted by this Agreement, DVIGEAR will have the right to terminate this Agreement upon written notice to Licensee, and recover from Licensee any damages it has suffered including without limitation, the costs DVIGEAR incurred in conducting the audit, and any profits made by Licensee as a result of its breach of this Agreement. DVIGEAR's remedies set forth in this Section 5(d) are cumulative and are in addition to, and not in lieu of, all other remedies DVIGEAR may have at law or in equity, whether under this Agreement or otherwise.
6. Maintenance and Support
(a) Subject to Section 6(c), upon registration of the Software with DVIGEAR, Licensee is entitled to receive DVIGEAR's basic software maintenance and support services for the duration of the Warranty Period (as defined in Section 10(a) below), as DVIGEAR may provide from time to time. The manner in which such maintenance and support services will be provided shall be determined by DVIGEAR in its sole discretion.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, "Updates") as DVIGEAR makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. DVIGEAR may develop and provide Updates in its sole discretion, and Licensee agrees that DVIGEAR has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that DVIGEAR may provide Updates via download from a website designated by DVIGEAR and that Licensee's receipt thereof will require an internet connection, which connection is Licensee's sole responsibility. DVIGEAR has no obligation to provide Updates via any other media. Maintenance and support services may not include any new version or new release of the Software that DVIGEAR may issue as a separate or new product, and DVIGEAR may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
(c) DVIGEAR reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee's registration of the DisplayNet Server® system for which Software support is requested. DVIGEAR has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any version of the Software for which all previously issued Updates have not been installed; (iii) if Licensee is in breach under this Agreement; or (iv) for any Software that has been modified other than by DVIGEAR, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation.
7. Collection and Use of Information
(a) Licensee acknowledges that DVIGEAR may, directly or indirectly through the services of Third Parties, require Licensee to register the DisplayNet Server® system with DVIGEAR in order to receive maintenance and support services for the Software, and to collect and store Licensee's contact information and information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services.
(b) Licensee agrees that DVIGEAR may use such information (i) as provided in its privacy policy located at www.dvigear.com/privacypolicy.html; and (ii) for any purpose related to any use of the Software by Licensee or on Licensee's equipment, including but not limited to (a) improving the performance of the Software or developing Updates; and (b) verifying Licensee's compliance with the terms of this Agreement and enforcing DVIGEAR's rights, including all Intellectual Property Rights in and to the Software.
8. Intellectual Property Rights
Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. DVIGEAR reserves and shall retain its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify DVIGEAR if Licensee becomes aware of any infringement of the DVIGEAR's Intellectual Property Rights in the Software and fully cooperate with DVIGEAR in any legal action taken by DVIGEAR to enforce its Intellectual Property Rights.
9. Term and Termination
(a) Unless terminated early as provided herein, this Agreement and the license granted hereunder shall remain in effect so long as Licensee owns the DisplayNet Server® system manufactured by DVIGEAR (the "Term").
(b) DVIGEAR may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for ten (10) business days after DVIGEAR provides written notice thereof.
(c) DVIGEAR may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
(d) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using the Software and destroy all copies of the Documentation.
10. Limited Warranties, Exclusive Remedy and Warranty Disclaimer
(a) DVIGEAR warrants that for a period of three years following the invoice date from Licensee's purchase of the DisplayNet Server® system from an authorized DVIGEAR distributor or integrator (the "Warranty Period"), the Software will substantially contain the functionality described in the Documentation, and when operated in accordance with the Documentation will substantially perform in accordance therewith.
THE FOREGOING WARRANTIES DO NOT APPLY, AND DVIGEAR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranties set forth in Section 10(a) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement: (i) uses the Software in connection with any hardware or software not specified in the Documentation; (ii) modifies or damages the Software or the DisplayNet Server® system, including abnormal physical or electrical stress; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation.
(c) If, during the Warranty Period, any Software covered by the warranty set forth in Section 10(a) fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 10(b), DVIGEAR will, subject to Licensee's promptly notifying DVIGEAR in writing of such failure, at its sole option, either repair or replace the Software, provided that Licensee provides DVIGEAR with all information DVIGEAR reasonably requests to resolve the reported failure, including sufficient information to enable the DVIGEAR to recreate such failure. If DVIGEAR repairs or replaces the Software, the warranty will continue to run from the purchase date of the DisplayNet Server® system, and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 10(c) are Licensee's sole remedies and DVIGEAR's sole liability under this Agreement.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DVIGEAR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, 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, DVIGEAR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S 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 OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL DVIGEAR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DVIGEAR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL DVIGEAR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO DVIGEAR.
(c) THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Export Regulation
The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.
13. Miscellaneous
(a) This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia 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 Georgia. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the city of Marietta and County of Cobb, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
(b) DVIGEAR will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond DVIGEAR's reasonable control.
(c) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile with confirmation of transmission if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the purchase order for the DisplayNet Server® system or to such other address as may be designated by a party from time to time in accordance with this Section 13(c).
(d) This Agreement, together with all other documents that are incorporated herein by reference, constitutes the sole and entire agreement between Licensee and DVIGEAR with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(e) Licensee may only assign or otherwise transfer its rights under this Agreement to a subsequent purchaser of Licensee's entire right, title and interest in the DisplayNet Server® system who agrees to be bound by all of the terms and conditions of this Agreement. No delegation or other transfer in violation of this Section 13(e) will relieve Licensee of any of its obligations or performance under this Agreement. DVIGEAR may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(h) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refers to the Sections of this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(j) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.