VYASA ANALYTICS SOFTWARE LICENSE AGREEMENT
THIS VYASA ANALYTICS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) IS A BINDING CONTRACT BETWEEN VYASA ANALYTICS, LLC (“LICENSOR”) AND YOU, AS AN INDIVIDUAL OR AN ENTITY (AS DEFINED BELOW) (COLLECTIVELY, “YOU” OR “LICENSEE”.)
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE VYASA PROPRIETARY SOFTWARE, OR ANY RELATED DOCUMENTATION THAT ACCOMPANIES THIS AGREEMENT (THE “LICENSED WORK”). THE LICENSED WORK IS COPYRIGHTED AND IS LICENSED UNDER THIS AGREEMENT, NOT SOLD.
BY CLICKING “I ACCEPT” OR DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THIS LICENSED WORK, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS IMMEDIATELY UPON DOWNLOADING, ACCESSING, OR OTHERWISE USING THE LICENSED WORK (THE “EFFECTIVE DATE”). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, PARTNERSHIP, TRUST, ASSOCIATION, GOVERNMENT ENTITY, OR OTHER ENTITY (AN “ENTITY”), AS ITS AUTHORIZED LEGAL REPRESENTATIVE OR AGENT, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO LEGALLY BIND SUCH ENTITY TO THESE TERMS.
IF AT ANY TIME YOU DO NOT AGREE TO ANY TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE LICENSED WORK TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL, OR OTHERWISE ACCESS OR USE THE LICENSED WORK, AND MUST DELETE ANY COPIES OF THE LICENSED WORK THAT YOU MAY HAVE IN ANY FORM OR FORMAT.
In consideration of the mutual covenants and promises contained in this Agreement, the parties agree as follows:
1. DEFINITIONS. The following capitalized terms will have the following meanings when used in this Agreement:
1.1 “Documentation” means the standard user manual or other documentation, specifications, written instructions or explanatory material related to the installation, operation, use or maintenance of the Software and any subsequent versions thereof, if any, that Licensee may receive from Licensor hereunder.
1.2 “Software” means the object code and binary file form of the Vyasa proprietary computer software program associated with this Agreement, inclusive of any authorized copies thereof.
2. LICENSE GRANT AND LIMITATIONS.
2.1 License Grant. Subject at all times to Licensee’s payment of the applicable Fees provided for herein and Licensee’s compliance with the terms of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-transferable, revocable right and license, without a right to sublicense, solely for Licensee’s internal business purposes during the Term, to: (i) use, access, and run the Software in accordance with the Documentation; and (i) make copies of the Software as necessary to exercise the license granted in Section 2.1(i).
2.2 License Limitations. Except as expressly set forth in this Agreement, Licensee shall not:
(a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the Licensed Work, for any purpose;
(b) remove any identification markings, including but not limited to copyright notices and trademarks, from the Licensed Work;
(c) make any modification, enhancement, or Derivative Work of the Licensed Work, or incorporate the Licensed Work, or any portion thereof, into or with any other software;
(d) copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Licensed Work or any Derivative Work of the Licensed; or
(e) use the Licensed Work to develop or distribute any software product that directly or indirectly competes in the marketplace with the Software.
For purposes of this Agreement, “Derivative Work” means any work based upon the Licensed Work, such as a translation, or any other form in which the Licensed Work may be recast, transformed, or adapted, and any work consisting of editorial revisions, annotations, or other modifications which, as a whole, represent an original work of authorship.
2.3 Rights to Documentation. Notwithstanding the foregoing, Licensee may make copies of the Documentation, solely to the extent reasonably necessary to permit access to and use of the Documentation by Licensee as authorized under this Section 2; provided, however, that Licensee retains without modification all legends, trademarks, trade names, copyright notices and other identifications and notices associated with the original.
2.4 Limited Access. Licensee shall take commercially reasonable steps to ensure that unauthorized persons will not have access to any of the Licensed Work and that all authorized persons having access to any Licensed Work refrains from any use, disclosure, duplication or reproduction of the Licensed Work except to the extent permitted under this Agreement, and that all such authorized persons otherwise are bound in writing to comply with the restrictions and obligations of this Agreement with respect to the Licensed Work.
2.5 Intellectual Property Rights. Except as specifically set forth in this Agreement, Licensee acknowledges and agrees that this Agreement does not grant Licensee any rights to the Licensed Work, including but not limited to, any rights to the source code for the Licensed Work. Except as expressly stated in this Agreement, all right, title and interest in and to the Licensed Work and all Intellectual Property Rights in and to the Software (including but not limited to all computer codes, animations, logos, images and text therein and any improvements thereto) are the sole and exclusive property of Licensor. All rights, including all Intellectual Property Rights, not expressly granted herein to Licensee are reserved to Licensor. As used in this Agreement, “Intellectual Property Rights” means all intellectual property rights protected by law throughout the world, including all copyrights, trademark and service mark rights (including trade names), patent rights (including the right to apply therefor), industrial property rights, inventions (whether or not patentable), trade secrets, know-how, specifications, moral rights, author’s rights, algorithms, goodwill, and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
2.6 Other Works Not Licensed. Licensee acknowledges and agrees that Licensor has, and will from time to time create other computer software programs that may be based upon or related to the Licensed Work and that those other programs are not licensed to Licensee under this Agreement.
2.7 No Obligations. Except as specifically set forth in this Agreement, Licensee acknowledges and agrees that Licensor has no responsibility for providing Licensee with any services, support, product, upgrades, updates, or other enhancements for or in connection with, and that Licensor is under no obligation to create any product upgrades or enhancements to the Licensed Work.
3. FEES AND PAYMENTS.
3.1 Fees. Licensee shall pay Licensor the fees set forth in the applicable registration form available via the website www.vyasa.com (collectively, the “Fees”) in the manner and in the amounts set forth in this Agreement and the applicable registration form, which payments will be non-refundable. All Fees shall be charged to the Licensee’s payment method (e.g., a credit card or ACH debit) designated by Licensee upon registration. In the event that Licensor is unable to successfully charge Licensee the applicable Fees, for example, due to an expired credit card, Licensor may suspend or terminate Licensee’s access to the Licensed Work effective as of the designated billing date, unless Licensee provides Licensor a new payment method prior to such suspension or termination.
3.2 No Taxes. The Fees do not include taxes, duties or similar fees. If Licensor is required to pay (a) sales, use, property, value-added, withholding or other taxes, (b) any customs or other duties, or (c) any import or other fees, associated with the importation or delivery based on the licenses granted under this Agreement or on Licensee’s use of the Licensed Work, then such taxes, duties or fees will be billed to and paid by Licensee. This Section 3.2 does not apply to and Licensee shall not be required to pay taxes based on Licensor’s gross receipts, income or payroll taxes.
3.3 Trial Use. From time to time, Licensor may offer Licensee, at Licensor’s sole discretion, a promotional trial period during which time Licensee is granted the license to the Licensed Work under Section 2.1 without payment of an associated Fee (a “Promotional Trial Period”). Licensor retains the sole discretion to determine the terms and length of a Promotional Trial Period. Licensee may be required to provide Licensor with certain registration and payment information prior to initiating the Promotional Trial Period. If Licensee does not provide a payment method upon registration for a Promotional Trial Period, Licensor may terminate Licensee’s access to the Licensed Work upon expiration of the Promotional Trial Period.
3.4 Authorization for Automatic Charge of Fees. Licensee agrees and hereby authorizes Licensor, upon the expiration of the Promotional Trial Period to charge the applicable Fees due hereunder for the license rights under Section 2.1 to the Licensed Work to Licensee’s registered payment method provided under Section 3.3, unless Licensee provides Licensor written notice of cancellation of this Agreement prior to the expiration of the Promotional Trial Period. If Licensee cancels prior to the expiration of the Promotional Trial Period, the Promotional Trial Period will continue until its designated expiration, and Licensee revokes Licensor’s authorization to charge Licensee’s registered payment method or any Fees.
3.5 Paid Access. Upon payment of any applicable Fees required for the license under Section 2.1 to the Licensed Work, Licensee’s paid access will begin on the first day after the expiration of the Promotional Trial (“Paid Access Period”), and shall continue during the Term as described under Section 8.1. Notwithstanding anything set forth in this Agreement to the contrary, the warranties stated in Section 4.1 shall not apply to the Licensed Work during the Promotional Trial Period.
4. WARRANTIES AND DISCLAIMERS.
4.1 Licensor Warranties. Licensor warrants, for Licensee’s benefit only, that for a period of ninety (90) days from the first day of the first Paid Access Term, the Software will perform substantially in accordance with specifications published by the Licensor for the Software. Licensor’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be for Licensor, in Licensor’s sole discretion, to: (a) use commercially reasonable efforts to provide Licensee with an error-correction or work-around that corrects the reported non-conformity; (b) replace the non-conforming Software with conforming Software; or (c) if Licensor determines such remedies to be impracticable within a reasonable period of time, terminate the Agreement and refund a pro rate portion of any pre-paid Fee paid for the Licensed Work for the terminated portion of the applicable Term. The limited warranty set forth in this Section 4.1 shall not apply: (i) unless Licensee makes a claim in writing to Licensor within thirty (30) days of the date on which Licensee first noticed the non-conformity; (ii) if the error was caused by misuse, unauthorized use or modifications, or third-party hardware, software or services; or (iii) to use provided during the Promotional Trial Period.
4.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1 OF THIS AGREEMENT, THE LICENSED WORK IS PROVIDED OR MADE AVAILABLE TO LICENSEE “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE, WITH RESPECT TO THE LICENSED WORK, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, SATISFACTORY QUALITY, FREEDOM FROM DEFECTS, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE, AND LICENSOR MAKES NO REPRESENTATION OF ANY KIND THAT THE 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.
5. LIMITATION OF LIABILITY.
5.1 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF: (A) LICENSOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, OR (B) LICENSEE’S BREACH OF SECTION 2.2, IN EACH CASE FOR WHICH THERE SHALL BE NO LIMITATION OF LIABILITY, NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY SPECIAL, INCIDENTAL, INDIRECT RELIANCE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR AMONT PAYABLE TO THIRD PARTIES UNDER SECTION 6 (INDEMNITY), LICENSOR’S ENTIRE LIABILITY TO LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO LICENSOR DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
5.2 No Liability for Access. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL LICENSOR BE RESPONSIBLE FOR OR BEAR ANY LIABILITY FOR ANY DAMAGES ARISING FROM USE OF THE LICENSED WORK, OR ANY STOPPAGES, SLOWDOWNS, PERFORMANCE PROBLEMS OR OTHER PROBLEMS THAT ARE THE RESULT OF THE INTERNET OR LICENSEE’S INTERNET ACCESS PROVIDERS.
6. INDEMNITY.
6.1 Licensor Indemnification Obligation. Licensor shall defend Licensee and its employees from and against any final award of costs (including, but not limited to, court costs and reasonable attorney’s fees) and damages finally awarded against Licensee resulting from any third party claims, demands, actions, suits or proceedings arising out of any infringement or claim of infringement of any copyright, trademark, or trade secret of any third party, with respect to the Licensed Work; provided, however, that Licensor receives from Licensee: (a) prompt notification in writing of any potential claim (in any event notice in sufficient time for Licensor to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all necessary information, reasonable assistance (at Licensor’s expense), and authority to enable Licensor to do so. Licensor shall defend or settle, at its expense, any claim, action, suit or demand against Licensee and its authorized representatives, for which Licensor is responsible hereunder.
6.2 Procure or Replace. If the Software or any portion of the Software becomes, or in Licensor’s opinion is likely to become subject to any claim of infringement, Licensor may, at its sole option, either: (a) procure for Licensee the right to continue exercising its rights under this Agreement with respect to the Software; or (b) replace the Software with substantially functionally similar programs or modify the Software to make it non-infringing; or, if neither (a) nor (b) are, in Licensor’s reasonable discretion, commercially feasible, (c) terminate the licenses to the corresponding Software granted under this Agreement and refund to Licensee any pro-rata amount of pre-paid Fees.
6.3 No Liability. Notwithstanding the obligations in Section 6.1 and 6.2, Licensor will have no liability for any claim of infringement to the extent such claim is based upon any infringement claim based on or arising from Licensee’s: (a) use of a superseded and no longer supported or release of the Licensed Work if the infringement would have been avoided by the use of a supported release of the Licensed Work that Licensor provided to Licensee and that has not been altered by Licensee; or (b) use of the Licensed Work which has been modified by Licensee; (c) use of the Licensed Work: (i) other than in accordance with the terms and conditions set forth in this Agreement; (ii) other than under normal use as set forth in the Documentation; or (iii) in combination with other software, products, services or equipment not provided by Licensor if such infringement would not have occurred without such combination; or (d) continuing the allegedly infringing activity after notice.
6.4 Sole Liability. THIS SECTION 6 STATES LICENSOR’S AND ITS SUPPLIERS’ ENTIRE AND SOLE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
7. INTELLECTUAL PROPERTY PROTECTION.
7.1 No Challenges by Licensee. Licensee shall not challenge, directly or indirectly, any right or interest of Licensor in the Licensed Work nor the validity or enforceability of Licensor’s rights in the Licensed Work under applicable law. Licensee shall not directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in any portion of the Licensed Work or to take any other action which may adversely affect Licensor’s rights or interest in the Licensed Work in any jurisdiction.
7.2 Notification. Licensee shall notify Licensor promptly and in writing of all circumstances, of which Licensee is aware, surrounding the unauthorized possession or use of the Licensed Work by any person or entity not expressly authorized or licensed under this Agreement. Licensee shall cooperate fully with Licensor, at Licensor’s expense, in any litigation relating to or arising from such unauthorized possession or use.
7.3 Trademark Rights. Licensee acknowledges Licensor’s ownership of all Intellectual Property Rights in the Licensed Work, including without limitation, Licensor’s trademarks and service marks. Except as set forth in this Agreement, Licensee acquires no interest in such trademarks and service marks by virtue of this Agreement or the performance by Licensee of its duties and obligations under this Agreement. Licensee shall not use the term “Vyasa” or any of Licensor’s trademarks or service marks (or any confusingly similar name, word, phrase or symbol), in whole or in part, as part of Licensee’s business.
8. TERM AND TERMINATION.
8.1 Term. The term of this Agreement shall commence on the Effective Date and extend until the later of: (i) expiration or termination of the applicable Promotional Trial Period, as stated in Section 3.3; or (ii) the expiration or termination of any then-current [one year] pre-paid Paid Access Period (the “Term”). For avoidance of doubt, a Paid Access Period shall expire if not renewed by timely payment by Licensee of the applicable Fee prior to the expiration of the then-current Paid Access Period.
8.2 Termination for Breach. Either party may, at its option, terminate this Agreement for a material breach of this Agreement by the other party after giving the other party written notice, specifically identifying the breach on which termination is based, and providing such other party thirty (30) days to cure such breach. If the breach is not cured within the appropriate time period, this Agreement will terminate without further action by either party.
8.3 Survival. Sections 2.2, 2.4, 2.5, 2.7, 3.2, 4.2, 5, 7.1, 7.3, 8.3, and 9, shall survive expiration or termination of this Agreement and shall continue in effect thereafter.
9. GENERAL PROVISIONS.
9.1 Relationship of the Parties. This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties. Neither party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other party.
9.2 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter in this Agreement. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between Licensor and Licensee with respect to the contents of this Agreement.
9.3 Export. Licensee shall not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Licensed Work, or any technical information about the Software to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States government approval, unless the appropriate export license or approval has been obtained.
9.4 No Waiver. The failure of either party to exercise any right granted under this Agreement, or to require the performance by the other party of any provision of this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.
9.5 Assignment. Neither Licensee nor Licensor may sell, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may assign or transfer this Agreement, by operation of law or otherwise, without the written consent of other party to a business entity succeeding to all or substantially all the assets and business of the business or operating unit of the assigning party to which this Agreement relates by merger or purchase; provided, further, that such other business entity expressly assumes all of the obligations, terms, and conditions of this Agreement. This Agreement is binding upon the successors and assigns of Licensee and Licensor.
9.6 No Third Party Beneficiary. The parties agree that no person or entity that is not a party to this Agreement will be deemed to be a third-party beneficiary or entitled to any rights under this Agreement.
9.7 Notices. All notices, requests, reports, submissions and other communications permitted or required to be given under this Agreement will be deemed to have been duly given if such notice or communication is in writing and sent by personal delivery or by airmail (e.g., USPS or FedEx) facsimile transmission, email or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to the parties at their respective addresses first above written, until such time as either party gives the other party not less than ten (10) days’ prior written notice of a change of address in accordance with the provisions of this Agreement.
9.8 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent as it is determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement will otherwise remain in full force and effect. Furthermore, it is the intention of the parties that in lieu of such illegal, invalid, or unenforceable provision, there automatically be added as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
9.9 Confidential Terms. Licensee shall not publicize or disclose to any third party any of the terms or provisions of this Agreement without the prior written consent of Licensor.
9.10 Publicity. Licensor may use Licensee’s name as a retained or former client of Licensor in any proposal sent to third parties, on its website, or in any other promotional materials, news releases, advertisement, or disclosures
9.11 Changes to the Agreement. Licensor reserves the right, in its sole discretion, to change, modify, add to, supplement or delete any terms and conditions of this Agreement at any time; provided, however, that Licensor will use its reasonable efforts to provide Licensee with notification of any material changes (as determined in Licensor’s sole and absolute discretion). If any future changes to this Agreement are unacceptable to Licensee or cause Licensee to no longer be in compliance with the terms of this Agreement, Licensee must immediately stop using the Licensed Work. Licensee’s continued use of the Licensed Work following any revision to this Agreement constitutes Licensee’s complete acceptance of any and all such changes.
9.12 Governing Law; Venue. This Agreement is performable in the Commonwealth of Massachusetts. Any disputes or proceedings related or arising out of this Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Massachusetts, without giving effect to its rules regarding conflicts of law. The parties agree that the exclusive jurisdiction and venue for any action arising under this Agreement will be in the state or federal courts located in Massachusetts, USA. The sole and official language of this Agreement is English.
