By accepting the contract that begins on this screen and by using this program in any way you (“Licensee”) acknowledge that you have read, understood and agreed to the terms of this End User License Agreement (the “Agreement”) and that it shall form a valid agreement between you and vFormity, LLC (“Company”). If you do not fully understand and/or agree, do not use this program in any context. This license is effective while you use and continue to make use of the software and services. You agree that this agreement is enforceable like any written negotiated agreement signed by you and or your company. This license will terminate if you fail to comply with any term or condition of this agreement.
In the event that you did not acquire a license to use this copy of the vFormity Products, (i) you are not authorized to install, use, transfer or sell the vFormity Products, (ii) you do not have a license to use the vFormity Products and (iii) you are committing a willful infringement and violation of U.S. and other country’s copyright laws if you use or install the vFormity Software. In such event you should immediately cease installing this Software and should contact vFormity. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property rights and laws.
VFORMITY SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). VFORMITY DOES NOT SELL OR TRANSFER TITLE TO SOFTWARE TO YOU.
1.1. “Documentation” means the documentation provided by Company with (or in connection with) the Software.
1.2. “Product” means the Software, the Documentation and (where the context so admits) any copies of either.
1.3. “Software” means the Company software described on your order documentation (which is incorporated into this Agreement by reference), in executable form, including all updates provided to Licensee under this Agreement and made available by Company to Licensee via Company’s hosted site.
2. GRANT OF LICENSE AND PAYMENT
2.1. Scope of License. In consideration of Licensee’s payment to Company of the applicable license and/or service fees, and subject to compliance by Licensee with the terms and conditions of this Agreement, Company hereby grants to Licensee a fully paid, non-exclusive, nontransferable license (without the right of sublicense) during the term of this Agreement (the “License”) to:
(a) install, execute, copy for archival purposes, use and display up to that number of licenses of the Software and/or services specified on Exhibit A or any subsequent orders under the format specified in Exhibit A, solely for Licensee’s own internal business purposes, which shall not include the right for Licensee to use the Software to operate a service bureau or otherwise host applications for its users unless specifically agreed to by Company, and
(b) use the Documentation only to assist with use of the Software and services.
2.2. Payment. Unless otherwise agreed to between the parties, payments shall be made by credit card or other electronic means as described on Company’s order page.
3.1. Support. During the term of this Agreement, Company will provide Licensee with the support described on Exhibit A free of charge (the “Support Services”) as provided at [LINK].
4. INTELLECTUAL PROPERTY
4.1. Acknowledgment of Rights. Licensee acknowledges that (a) as between Company and Licensee, all right, title and interest in and to the Product (including any and all intellectual property rights embodied therein or associated therewith) are and will remain Company’s, and this Agreement in no way conveys any right or interest in the Product other than a limited license to use it in accordance herewith, (b) the Product is a work protected by the copyright laws of the United States and international treaties, and (c) Company asserts that the Product embodies valuable confidential and secret information of Company, the development of which required the expenditure of considerable time and money.
4.2. Licensee’s Obligations. Licensee will (a) not disclose or provide the Product to any other party, (b) not alter, reverse engineer, disassemble, decompile or copy the Software, (c) limit access to the Product to its employees and consultants who require access in connection with Licensee’s use of the Product and who have agreed in writing or are otherwise legally bound to observe Licensee’s obligations hereunder, and, (d) take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Product.
4.3. Injunctive Relief. Licensee specifically agrees that, in the event that a breach by Licensee of its obligations under this Section 4 is proven by Company, (a) Company will be deemed conclusively to be entitled to an injunction or similar equitable relief ordering the cessation of such breach immediately upon request to a court of competent jurisdiction without having to show anything other than the fact of such breach, and (b) Licensee will not argue in any such proceeding either that such breach will not cause irreparable harm to Company or that Company can be adequately compensated for such harm by money damages or other remedies other than injunctive relief, and any such arguments by Licensee will not be considered by the court.
(a) Company’s Confidential Information. Licensee agrees that the Software and the Documentation, including the specific design and structure of individual programs, constitute confidential proprietary information of Company. Licensee shall not disclose, provide, or otherwise make available such confidential information in any form to any third party without the prior written consent of Company. Licensee shall implement reasonable security measures to protect such confidential information, but without limitation to the foregoing shall use the same efforts to protect the security of the activation code as Licensee uses to protect its own highly sensitive proprietary information.
(b) Licensee's Confidential Information. During the course of this Agreement, Licensee may provide Company with, or Company might gain access to, non-public documents or other information of Licensee. Company agrees that it will use these documents and other information on a strictly confidential basis and that (i) Company will not use such documents or information except in performing its responsibilities hereunder, (ii) Company will not disclose such documents or information except with the prior written permission of Licensee, (iii) any documents that Company receives from Licensee will remain the property of Licensee, and (iv) Company will return all such documents to Licensee upon the termination of this Agreement and will retain no copies thereof.
5. WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY
5.1. Limited Warranty Against Infringement. Company warrants that: (a) it is the sole owner of the Software and/or has full and sufficient right to assign or grant the rights and/or licenses granted to Licensee in this Agreement and; (b) the Software does not (and, with respect to any and all updates to the Software, will not) infringe any copyright, trademark, or trade secret rights of any third party.
5.2. Exclusive Remedy for Breach of Infringement Warranty. If a third party claim is made or a third party action is brought that the Software infringes the United States copyright, trademark or trade secret of a third party, Company will indemnify Licensee and hold it harmless against such claim and all resulting costs, damages and attorney’s fees finally awarded or agreed to in settlement, provided that (a) Licensee promptly notifies Company in writing of the claim (provided failure or delay in notification shall not relieve Company of such obligation unless and to the extent Company is materially prejudiced thereby), and (b) Company has sole control of the defense and all related settlement negotiations (provided any settlement must contain a full and unconditional release of Licensee for liability relating to the scope of Company’s indemnification obligations or must be consented to in writing by Licensee). Licensee may be represented by separate counsel at its own expense. Company’s obligations under this section are conditioned on Licensee’s agreement that if the Software, or the use or operation thereof, becomes, or in Company’s opinion is likely to become, the subject of such a claim of intellectual property infringement, Company may at its expense, either procure the right for Licensee to continue using the Software or, at its option, replace or modify the same so that it becomes non‑infringing (provided such replacement or modification does not materially adversely affect Licensee’s intended use of the Software as contemplated hereunder). If neither of the foregoing alternatives is available on terms which are reasonable in Company’s reasonable judgment, Licensee will cease use the Software on written request by Company and Company will refund to Licensee any fees that have been paid for the unused term of the license. THE FOREGOING STATES THE ENTIRE REMEDY OF LICENSEE AND THE SOLE OBLIGATION OF COMPANY WITH RESPECT TO INFRINGEMENT CLAIMS.
5.3. Disclaimer Of Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SOFTWARE, DOCUMENTATION OR ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO LICENSEE HEREUNDER OR IN CONNECTION HEREWITH INCLUDING BUT NOT LIMITED TO THIRD PARTY SUPPLIERS WHICH MAY BE AVAILABLE TO LICENSEE THROUGH COMPANY’S SOFTWARE AND SERVICES. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY COMPANY EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY COMPANY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF COMPANY WHATSOEVER. Without limiting any of the foregoing, Company does not make any warranty (but nevertheless warrants that it shall use commercially reasonable efforts to ensure) that the Software will operate uninterrupted or be error-free.
5.4. Limitation Of Liability. IN NO EVENT (a) WILL COMPANY’S MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED ACTUAL DIRECT DAMAGES CAUSED BY THE SPECIFIC PRODUCT COMPLAINED OF, (b) WILL EITHER PARTY’S MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED THE TOTAL AMOUNT OF FEES PAID TO COMPANY HEREUNDER (PROVIDED THAT WITH RESPECT TO A BREACH OF LICENSEE’S PAYMENT OBLIGATIONS SUCH LIMITATION WILL NOT SERVE TO REDUCE THE AMOUNTS OWED BY LICENSEE), OR (c) WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA OR LIABLITY FROM ANY THIRD PARTY SERVICES RECOMMENDED TO LICENSEE OR PROVIDED VIA COMPANY’S SOFTWARE AND SERVICES) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. THE SOFTWARE AND RELATED SERVICES MAY INCLUDE LINKS TO THIRD PARTY PROVIDERS. COMPANY SHALL NOT BE LIABLE FOR ANY SUCH SERVICES PURCHASED BY LICENSEE AND ANY CONTRACTUAL RELATIONSHIP BETWEEN LICENSEE AND SUCH THIRD PARTIES SHALL BE SOLELY BETWEEN LICENSEE AND SUCH THIRD PARTIES.
6. TERM AND TERMINATION
6.1. Term. This Agreement will become effective upon execution by authorized representatives of both Company and Licensee and will continue in effect for the period of the license purchased by Licensee, unless earlier terminated in accordance with its terms, provided that any terms of the Agreement necessary to enforce Company’s rights shall survive such termination.
6.2. Termination by Company. Company may terminate this Agreement (a) if Licensee breaches any of its obligations set forth in Sections 2 or 4, then upon written notice specifying such breach, effective ten (10) business days after receipt unless Licensee cures such breach within the ten (10) business day period, or (b) if either party breaches any other material obligation under this Agreement (including without limitation any payment obligation), then by written notice to the breaching party, effective thirty (30) days after receipt unless the breaching party cures such breach within the 30-day period. In the event that Licensee does not cure a breach of non-payment of fees as provided in this Section 6, Company may (i) restrict Licensee’s access to the Software, and (ii) not be required to store any data that Licensee’s has entered with the Software.
7.1. Assignment. This Agreement will be binding upon Company’s or Licensee’s successors or permitted assigns. Neither party may assign or transfer this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any attempted assignment or transfer without such consent will be void and of no effect. Notwithstanding the foregoing, Company may assign this Agreement without the consent of Licensee to a successor to all or substantially all of Company’s business and assets (by acquisition, merger, sale of assets or otherwise) that accepts in writing the terms of this Agreement.
7.2. Relationship of the Parties. Company and Licensee are independent contractors, and nothing in this Agreement will be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party will make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
7.3. Notice. All notices given under this Agreement will be effective on receipt and will be in writing and sent to the address of the other party set out at the beginning of this Agreement or to any replacement address of which the other party has been given notice in accordance with this section.
7.4. Force Majeure. In no event will either party be liable for any delay or failure to perform under this Agreement which is due to causes beyond the reasonable control of such party.
7.5. Entire Agreement; Modifications. This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. This Agreement may be modified only by a written instrument signed by an authorized representative of each party.
7.6. Severability. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision will be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.
7.7. Governing Law. This Agreement will be governed by the substantive laws (but not the conflicts of laws provisions) of the State of Illinois. All disputes hereunder shall be resolved in the applicable state or federal courts of Illinois. The parties consent to the jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
1.0 Maintenance and Support Services
a. For so long as this Agreement is in effect and Licensee is current in its per user per year license fee payments, SA shall provide Licensee maintenance and support services (“Maintenance and Support” or the “Support Services”) as specified in these terms.
The Support Services shall include bug-fixes, work arounds, corrections, enhancements, updates and new releases and versions of VFormity made available to customers on a non-beta, commercial basis.
Prior to requesting Support Services, Licensee shall use commercially reasonable efforts to comply with all VFormity’s published operating and troubleshooting procedures contained in the Documentation. Licensee shall use commercially reasonable efforts to gather technical information specific to a problem including Software log files, reports, and error messages. Upon receipt from Licensee of a notice of a Software problem, accompanied by reasonable supporting detail and provided that the Software problem is then under warranty or a support and maintenance obligation, VFormity will use reasonable efforts to determine if such Software problem exists and to correct, to the satisfaction of Licensee, such Software problem within the timeframes set forth in this Standard Maintenance and Support Policy, depending on the severity level of the Software problem.
b. Any corrections to the Software will be made to the most current generally available release of the Software and, if requested by Licensee, to versions N-1 and N-2 of the Software, where version N is the latest listed version at the time. After the introduction of a new and generally available release of the Software, VFormity will support the then-current and the prior major release of such Software, and the versions of each mentioned above. Licensee may install and use all Software updates and enhancements but Licensee is not obliged to do so. VFormity shall have no obligation to correct any Software problem to the extent of an unauthorized modification or alteration of the Software by Licensee, that cause it to deviate from the Documentation, or in the event of operating system or computer malfunction not caused by the Software. VFormity will ensure that its API and ID Tool software, which is part of the licensed Software, will run on Licensee’s required operating system and hardware platforms.
c. Licensee acknowledges and agrees that it is, and will be, solely responsible for the accuracy and adequacy of all information and data furnished by Licensee for processing.
1.1 Problem Categories
Type I: Functionality or performance problems in a VFormity infrastructure component leading to loss of functionality for 10% or more of Licensee’s users. VFormity will only be called by Licensee for such outages after escalation through the internal technical resources of Licensee.
Type II: Failure of an infrastructure component that does not result in loss of functionality due to redundancies within the VFormity environment.
Type III: All other problems. For example, questions on configuration, features, behavior inconsistent with the documentation, etc.
Problem Type: Type I
Response Type: Telephone 24x7
Response Time: 24 Hour
Resolution on Workaround Expectation: ASAP
Problem Type: Type II
Response Type: Telephone 24x7
Response Time: 24 Hour
Resolution on Workaround Expectation: Within 3 business days of call
Problem Type: Type III
Response Type: E-Mail
Response Time: 7 business days
Resolution on Workaround Expectation: Within 30 business days
1.2 Response Time
1.3 Causes not Attributable to VFormity
This Maintenance and Support policy does not include services requested as a result of, or with respect to, causes to the extent they are not attributable to VFormity. Causes which are not attributable to VFormity include, but are not limited to, the following events caused by Licensee or its agent:
a. Accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of rotation media not furnished by VFormity; excessive heating; fire and smoke damage; operation of the Software with other media and hardware, software or telecommunication interfaces not meeting or not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use;
b. Improper installation by Licensee or use of the Software that deviates from any operating procedures established by VFormity in the applicable Documentation; and/or
c. Modification, customization, alteration or addition or attempted modification, customization, alteration or addition of the Software that cause it or deviate from the Documentation undertaken by any party other than VFormity or its agents without the written consent of VFormity; software programs made by Licensee or other parties under the control of Licensee.
1.5 Information Gathering
Licensee shall provide VFormity with a description of the request or problem. To assure accuracy, the hotline analyst may request any of the following information outlined below:
o Problem severity
o Problem description
o Exact error messages
o Log information
o Date and time problem was encountered
o Changes made to the configuration/ environment prior to the problem
o Changes made to the configuration/ environment after the problem
o Actions taken to isolate and resolve before contacting the hotline
o Hardware configuration
o Appliance release level
o System configuration parameters
o Information about other software interacting with the Software
1.6 Maintenance and Support Fee The Maintenance and Support fee are included in the license fee.