PLEASE READ THIS AGREEMENT CAREFULLY. IT GOVERNS YOUR VISIBLETHREAD SUBSCRIPTION, INCLUDING ANY SOFTWARE, CONTENT, MATERIALS, OR SERVICES THAT YOU RECEIVE THROUGH THE SUBSCRIPTION. BY COMPLETING THE PURCHASE OF A VT DOCS OR VT WRITER OR VT INSIGHTS OR VT WEB SUBSCRIPTION, OR BY USING OR ACCESSING VT DOCS OR VT WRITER OR VT INSIGHTS OR VT WEB, YOU CONFIRM THAT YOU AGREE TO THIS SUBSCRIPTION AGREEMENT. IF YOU DON’T AGREE, DO NOT PURCHASE OR ACTIVATE A VT DOCS OR VT WRITER OR VT INSIGHTS OR VT WEB SUBSCRIPTION OR ACCESS ANY SUBSCRIPTION BENEFITS, WHICH INCLUDE ANY ASSOCIATED SOFTWARE.
Please note that VISIBLETHREAD does not provide warranties for the VT Docs or VT Writer or VT Insights or VT Web subscription. This agreement also limits VISIBLETHREAD’s liability. The applicable warranty and liability terms are specified in sections 7 and 8.
The following terms shall have the meanings set forth below:
1.1. “Certified Operating Environment” means all pertinent hardware, operating system software, middleware software, database, and other software on which Product are run;
1.2. “Documentation” means any associated media, printed materials, “online” or electronic documentation;
1.3. “Product(s)” means the downloaded machine-readable object code or machine readable code residing on our cloud servers of one or any combination of the VisibleThread software programs and in particular “VT Docs” and “VT Writer” and “VT Insights” and “VisibleThread Web” (including any link time and runtime modules), any license key and any Documentation that may be furnished;
1.4. “Product License Type” shall mean the type of license purchased by Licensee from Licensor the specifics of which are as is more fully set out in Clause 2.4;
1.5. “Support Services” means those support services purchased by Licensee from Licensor the specific agreed terms and conditions of which are incorporated herein by reference;
1.6. “Territory” means the country in which the Licensee intends using the Product(s) determined, unless otherwise agreed, by the address of the Licensee given to Licensor at the time of Acceptance;
1.7. Any other defined terms shall have the meaning described in this Agreement.
1.8. “Subscription Term” means the period of time for which the License Type was
1.9 “On-Premise Product(s)” means Product(s) that are deployed and run on computers on the premises of the person or organization using the software or run on an environment under the control of the person or organization using the software.
2.1. Grant of License: Subject to payment by Licensee of Licensor’s fees, the amount of which is determined by reference to the number and Product License Type purchased, and compliance with the terms and conditions contained in this Agreement, Licensor grants to Licensee a non-exclusive, non-transferable license to use the Product for which the applicable license fees have been paid for the Subscription Term set forth in Clause 5 below solely for Licensee’s internal business purposes and in accordance with the specific provisions of the Product License Types (as are more fully set out in Clause 2.4 below). All intellectual property rights and title to the Product shall remain with Licensor and/or its licensors and no interest or ownership herein is conveyed to Licensee under this Agreement. No right to modify, adapt, or translate the Product or create derivative works therefrom is granted to Licensee.
Nothing in this Agreement shall be construed to mean, by inference or otherwise, that Licensee has any right to obtain source code for the Product.
Disassembly, decompilation or reverse engineering and other source code derivation of the Product is prohibited. To the extent the Licensee is granted the right by law to decompile the Product in order to obtain information necessary to render the Product interoperable with other software and upon written request by Licensee identifying relevant details of the product(s) with which interoperability is sought and the nature of the information needed, Licensor will readily make available such information. The Licensor has the right to impose reasonable conditions such as a reasonable fee for doing so.
2.2. Product Territory. The licenses granted hereunder are only valid in the Territory. Licensee shall not ship, Transfer, Share or otherwise export the Product to another Territory without Licensor’s advance written consent. A change in Territory may be subject to an additional fee at Licensor’s then current rates. Licensee acknowledges that the export of the Product may be subject to regulations and shall be responsible for complying with such regulations. Licensee represents and warrants that it shall not, directly or indirectly, export, re-export or use Products or related technology or commit any act in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws of any country having jurisdiction over the parties or this transaction(s).
2.3. Licensing Basis.
A copy of the On-Premise Product may be stored or installed on a storage device, such as a network server, but only in order to install the Product on other computers over a network. Licensor reserves the right to change license key administration at any time to monitor single user licenses. Licensee may make one copy of the Product for the purpose of Licensee’s disaster recovery arrangements, and a reasonable number of media archive and backup copies. All copyright, trademark and related proprietary notices incorporated in or fixed to the Products shall be duplicated by Licensee on all copies or extracts thereof and shall not be altered, removed or obliterated without Licensors prior written consent.
2.4. Product License Types.
2.4.1. Perpetual Single User. A Product license that is allocated to a given user making that user active, can be reallocated to a different user, provided the total number of active users does not exceed the total number of authorized Product licenses purchased for the applicable Product.
2.4.2. Subscription Single User. A Product license that is allocated to a given user for a specified period of time (the Subscription Term), making that user active for that time period, can be reallocated to a different user, provided the total number of active users does not exceed the total number of authorized Product licenses purchased for the applicable Product at that point in time.
2.5. Access and Use:
2.5.1. Only Licensee may access or use the Product. On-Premise Products may only be accessed and used on equipment owned or controlled by Licensee at Licensee’s facilities. Licensee may not
(i) lease, loan, resell or otherwise distribute the On-Premise Product;
(ii) use the Product to provide marketing, training or consulting services related to the Product; or
(iii) except as permitted in Clause 2.5.2 below, permit access to or use of the Product by or on behalf of any third party.
2.5.2. Notwithstanding any contrary terms of this Agreement, Licensee’s third-party contractors or consultants (“Contractor”) shall be permitted to use the Product: (a) solely for the benefit of Licensee; (b) only according to the terms of this Agreement (including the requirement that Product remains installed only on Licensee’s equipment at Licensee’s facility); and (c) with technical support to Contractor to be co-ordinated through Licensee. Licensee shall at all times be responsible for Contractor’s compliance with the terms of this Agreement.
2.5.3. A Product license is for use only on the Certified Operating Environment as advised by Licensor (including by way of example in the Product release notes) and designated host platform(s) for which the license is issued, except as may be stated elsewhere in this Agreement. Any Product may be transferred in its entirety from one designated host to a different, then-current designated host platform within the same Product Territory provided that with any such transfer: (a) in no event shall the total
number of Product licenses in use exceed the total number of Product licenses for which the license fees have been paid; and (b) Licensee shall be responsible for any additional price in such a transfer of host platforms.
2.5.4. The individual Products that are licensed as part of a multi-Product bundle, or a Licensor “Suites” Product, may not be used simultaneously by different users, and may be used by only one user at a time. For each separate Product which is included as a component of a Licensor “Suites” Product, that separate Product shall be subject to all licensing properties of the Licensor “Suites” Product. Additionally, to the extent that third party software programs are bundled with Licensor’s Product, they may not be unbundled from, or used independently of, the Licensor Product. Some Products may contain third party software for which Licensor may be required to publish specific copyright notices, trademarks/tradename notices, legends information, or other licensing requirements. Licensee should refer to Product release notes and/or other Product documentation for such notices or information, which are incorporated by reference herein.
3. PAYMENT AND ORDERING
3.1. Licensor Fees. Licensor fees or other charges for any Products or Support Services supplied hereunder may be specified on our website, in a separate purchase schedule or on a written price quotation from Licensor. Unless expressly stated to the contrary License fees are exclusive of, and Licensee is responsible for, shipping costs, duties and taxes.
3.2. Ordering of Licenses and Support Services. Licenses to use Products or Support Services may be ordered from time to time under the terms of this Agreement by Licensee although Licensor has no obligation whatsoever to accept such order. Unless explicitly set forth in this Agreement, any and all discounts extended by Licensor under this Agreement shall only apply to additional Products and/or Support Services if mutually agreed in writing to by both parties.
3.3. Invoicing and Payment. All payment of fees or charges under this Agreement shall be made in accordance with the method(s) and time for payment as stipulated by Licensor. Where any amount payable by Licensee to Licensor hereunder is past due then (without prejudice to the Licensor’s other rights and remedies) the Licensor reserves the right to charge interest on such amount equal to one and one-half percent (1.5%) per month or, if less, the maximum amount permitted by law, on any outstanding invoice which is due but unpaid by Licensee.
4. LICENCE CODES. Certain Licensor Products may require periodic license codes based on the serial number or host I.D. of the installation computer and the number of authorized simultaneous users. These codes require Licensor to enable such Product for use on a particular installation computer for the Subscription Term. The Product may contain such codes and may be disabled if installed on a computer with a different serial number or if used by more than the authorized number of simultaneous users.
5. TERM AND TERMINATION OF SUBSCRIPTION PRODUCT LICENCE. The subscription Product license shall be valid from the date purchased by Licensee for the duration of the Subscription Term unless terminated by: (a) mutual consent; or (b) Licensor upon Licensee’s failure to cure a material breach of this Agreement within thirty (30) days of receipt of written notice of breach, or immediately upon written notice if the breach by its nature is incurable. Upon termination, Licensee agrees to cease use of and destroy any and all copies of the Software and Documentation in its possession or control and certify in writing signed by an officer of the Licensee that such items have been destroyed.
6. UPDATES AND SUPPORT. This Agreement grants Licensee rights to any updates to the Product during the Subscription Term, Use of updates to the Product shall be governed by the terms and conditions of this Agreement and any additional terms and conditions that accompany these updates.
7. LIMITED WARRANTIES. Licensor warrants that
(i) the media on which the On-Premise Product is furnished to Licensee will be free of material defects in materials and workmanship for ninety (90) days; and
(ii) the Product will substantially operate according to specifications published by Licensor (“Specifications”) for a period of thirty (30) days from the date of purchase; (iii) after the initial thirty (30) day period and provided Licensee obtains Support Services from Licensor and complies with all obligations in this Agreement the Products, as updated and when used in accordance with this Agreement, will substantially operate according to the Specifications;
(iv) The Product does not contain any virus, Trojan horse, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that would erase or transport data or programming or otherwise cause any software or hardware to become inoperable, unsecure or incapable of being used in the full manner for which it was designed and created, or provides Licensor or any third party with access to or the ability to alter data or programming code ( “Malware”);
(v) The Product contains third party technology, including technology governed by open source license agreements. Licensor warrants that all such third party technology is in adherence with all specific license clauses and distribution obligations. VisibleThread is shrink-wrap productivity software that is not customizable from a code perspective. Notwithstanding the preceding section of this clause, Licensor warrants that such 3rd party software does not confer on Licensee any obligation of any kind.
Licensor’s sole liability and Licensee’s exclusive remedy for breach of any warranties and/or Licensor’s unacceptable Support shall be, at Licensor’s option: (a) to repair or replace Licensee’s defective media or Product or; (b) within a reasonable period (ten days) from receipt of the defective media or notice regarding a defective or malfunctioning Product to refund the Licensee within thirty (30) days the license fee paid for the Product and cancel this Agreement. Any modification of the Product by any party other than Licensor except in accordance with Licensor’s instructions, or use of said Product other than as specified in relevant Licensor publications, shall void this warranty. The foregoing warranties are subject to the limitations, if any, that are due to or may affect the databases, middleware and any other third party components not furnished by Licensor which are used in combination with the Products. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE PRODUCT WILL BE ERROR-FREE. EXCEPT TO THE EXTENT PROHIBITED OR LIMITED BY LAW FROM JURISDICTION TO JURISDICTION, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES (OTHER THAN THOSE WARRANTIES STATED IN THIS CLAUSE 7), EXPRESS OR IMPLIED, WITH RESPECT TO THE MEDIA AND PRODUCT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY WARRANTY AGAINST INTERFERENCE WITH LICENSEE’S QUIET ENJOYMENT OF THE PRODUCT.
8. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT PROHIBITED OR LIMITED BY LAW FROM JURISDICTION TO JURISDICTION IN NO EVENT SHALL LICENSOR OR ITS LICENSORS BE LIABLE TO LICENSEE OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, LOST DATA AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF CLAUSE 9 AND CONFIDENTIALITY OBLIGATIONS OF CLAUSE 11.8, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF LICENSOR OR ITS LICENSORS TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS RELATED TO, ARISING FROM, OR BASED UPON THIS AGREEMENT EXCEED THE LICENCE FEE PAID BY LICENSEE FOR USE OF THE PRODUCT.
9. INDEMNIFICATION. Licensor shall, except as otherwise provided below, defend or settle any claim made or any suit or proceeding brought against Licensee so far as it is based on an allegation that any Product furnished hereunder infringes any patent, copyright, trademark, trade secret or other intellectual property right, if Licensor is notified promptly in writing and given reasonable information and assistance, and Licensor is given the sole authority to defend or settle same at Licensor’s expense. Licensor shall pay all damages and costs (including costs of Licensee’s retained counsel) finally awarded therein against Licensee. In case the Product in such suit is held to infringe and the use of the Product is enjoined, or in the case of a settlement as referred to above, Licensee will permit Licensor, at its own option and expense, to: (a) procure for Licensee the right to continue using the Product; (b) replace the Product with a non-infringing Product without degradation in performance; (c) modify the Product so it becomes non-infringing without degradation in performance; or, (d) if none of the foregoing is practicable in the reasonable judgment of Licensor, Licensor will refund the price paid for the Product. If Licensor refunds the price paid for the Product, the Product license under this Agreement shall immediately terminate. Licensor shall have no liability for any infringement of patents, copyrights, or other intellectual property rights, trademarks or trade secret resulting, in whole or in part, from: (1) non-compliance with Licensee’s designs, specifications, or instructions; (2) modifications of the Product by any party other than Licensor other than in accordance with Licensor’s instructions; (3) use of the Product other than as specified in relevant Licensor publications; (4) use of the Product by Licensee after Licensor has made available to Licensee a non-infringing version of the Product or has refunded to Licensee the price paid for the Product; or (5) use of the Product with infringing software or data.
10. LICENSEE RESPONSIBILITIES. Licensee agrees not to reproduce, deactivate or bypass the security devices, including any license key, supplied with the Product. Licensee agrees to comply with all Licensor standard Product licensing procedures and license keys, and not to utilize programs, scripts or any other automatic devices to access or use the Product in a manner inconsistent with the terms of this Agreement. Licensee agrees to preserve and respect all copyright, patent, proprietary rights and confidentiality notices and restricted rights legends included in the Product. Licensee hereby acknowledges that Licensee is aware of the fact that the Product contains professional and confidential know-how and, therefore, agrees not to disclose, transfer, or otherwise provide to any third party any portion of the Product except as provided in this Agreement or with the express written permission of Licensor.
Licensee shall be responsible for all taxes including, but not limited to, sales, use, withholding, value-added, goods and services and excise taxes assessed or levied by any jurisdiction arising out of the performance of this Agreement, except for taxes based on the net income of Licensor.
11.1. Governing Law. The State of Maryland state law governs the interpretation of this agreement and applies to claims for breach of it. Any dispute arising out of this End User License Agreement shall be subject to the exclusive venue of the federal and state courts located within the geographic boundaries of the United States District Court for the State of Maryland. Save as agreed in writing with an authorized representative of the Licensor this Agreement is the entire agreement between Licensor and Licensee and supersedes any other communications or advertising with respect to the Software and the Documentation.
11.2. Audits. Licensor, or Licensors designated agent, may upon a 30-day advance written notice to Licensor and in a manner that is not disruptive to Licensee’s normal business operations, inspect any Licensee facility where Licensor Products are used for the purpose of confirming Licensee’s compliance with this Agreement. Licensor may perform one audit per twelve (12) month period. Licensors inspection shall be subject to Licensee’s reasonable security and confidentiality requirements and be performed at Licensor’s sole expense, provided, however, that if a result of Licensor’s audit, it is determined that Licensee owes Licensor additional fees under the terms of this Agreement by more than ten percent (10%) of the fees already paid, then Licensee shall bear the reasonable cost of Licensors audit and pay all past due fees in accordance with the terms of this Agreement.
11.3. Product Benchmarking. Licensee shall not release the results of any Product benchmark or any similar testing measure to any third party without the prior written approval of Licensor for each such release.
11.4. Notices. The parties shall put all notices or other communications required or permitted by this Agreement in writing, addressed as specified above, and any notice will be considered to have been given to the other party:
(i) if mailed from a location within the United States to a location within the United States, seven (7) calendar days after mailing by registered mail;
(ii) if mailed to any other international location, five (5) calendar days after being sent by an internationally recognized air express courier, charges prepaid, and return receipt requested;
(iii) upon facsimile or telecopier transmission if a transmission confirmation is received and retained by the sender.
11.5. Amendment; Waiver. No modification or waiver of any provision herein shall be binding on either party unless specifically agreed upon in writing and signed by both parties hereto. No delay or failure to exercise or enforce any right or remedy granted hereunder shall operate as a waiver thereof, nor in any way prejudice a party’s rights hereunder. No waiver of any breach shall operate as a waiver of any separate or subsequent breach.
11.6. Force Majeure. Neither party shall be responsible for any consequence caused by circumstances beyond its reasonable control, including but not limited to war (whether or not declared), acts of government of the United States, export or import prohibitions, breakdown or general unavailability of transport, general shortages of energy, fire, explosions, accidents, strikes or other concerted actions of workmen, lockouts, sabotage, civil commotion and riots (an “Event of Force Majeure”). If either party suffers delay in execution of its contractual obligations due to an Event of Force Majeure, the party shall as soon as possible give the other party notice in writing of the cause of delay. Such party shall, however, perform said contractual obligations as promptly as reasonably practicable after removal of the cause and/or its effects. Neither party shall claim damage or any other compensation from the other party for delays or non-fulfillment of this Agreement caused by an Event of Force Majeure. In the event the delay or non-performance of either party under an Event of Force Majeure continues for a period of sixty (60) days, either party shall have the right to terminate this Agreement with immediate effect without liability.
11.7. Survival of Obligations. Save and except for Clause 2.1 the provisions of all other Clauses in this Agreement shall survive termination for any reason.
11.8. Confidential Information. Each party shall retain in confidence and require its employees, agents and contractors, to retain in confidence all information contained in the Products and Documentation and all information and know-how, regardless of form, transmitted to such party that the disclosing party has identified as being proprietary and confidential or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”). The receiving party shall retain Confidential Information in as secure a manner as reasonably possible, but in no event less secure that the receiving party retains its own Confidential Information. Confidential Information shall remain the sole property of the disclosing party and shall not be disclosed to any third party without the express written consent of the disclosing party (except, solely for the receiving party’s internal business needs, to consultants who are bound by a written agreement with the receiving party to maintain the confidentiality of such Confidential Information in manner consistent with this Agreement). Confidential Information shall not include any information that
(i) is at the time of disclosure or subsequently becomes publicly available without the receiving party’s breach of any obligations owed to the disclosing party;
(ii) became known to the receiving party prior to the disclosing party’s disclosure of such information to the receiving party;
(iii) became known to the receiving party from a source other than the disclosing party other than by the breach of an obligation confidentiality owed to the disclosing party;
(iv) is independently developed by the receiving party; or (v) is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. This Clause shall expressly survive termination of this Agreement.
11.9. Assignment and Transfer. Neither this Agreement nor any right, obligation or Product licensed hereunder may be assigned by either party without the other party’s advanced written consent, whose consent shall not unreasonably be withheld. Notwithstanding the foregoing, either party may assign this agreement to an Affiliate of the party upon providing written notice of such assignment and so long as the Affiliate fully assumes the responsibilities of the assigning party as set forth in this Agreement. An Affiliate is a legal entity that is owned at least fifty percent (50%) or more by a party to this Agreement. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein. Additionally, upon written notice in form and content acceptable to Licensor, a Product License may be transferred pursuant to a U. S. Government program awarded to Licensee if the Product is assigned as commercial software to the U.S. Government as residual property at the end of a contract, but not under an indefinite delivery, indefinite quantity contract or similar procurement vehicle. Any such assignment shall be subject to the terms and conditions stated herein.
After any such assignment or transfer, the assigning or transferring Licensee shall have no rights with regard to the Product licenses.
11.10. Compliance with Laws. Each party shall comply with all applicable laws, rules, regulations, and other provisions enacted or promulgated by any governmental authority relating to their performance under this Agreement including with respect to Licensee, without limitation, all applicable export laws and regulations.
11.11. Injunctive Relief. In the event of an irreparable or incurable breach of this Agreement including, but not limited to, unauthorized access to or use of the Product, both parties agree that they shall be entitled to seek injunctive relief, without posting bond or proving damages.
11.12. Severability. If the whole or any part of any provision of this Agreement is held to be unlawful, void or unenforceable, then that provision or part provision shall be severed from this Agreement and will not affect the validity and enforceability of any of the remaining provisions.
12. U.S. GOVERNMENT RIGHTS. All Product provided to the U.S. Government pursuant to this Agreement is provided and licensed as commercial software, subject to the terms herein. All Product provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFARS, 48 CFR 252.227-7013 (OCT 1988), as applicable.