SOFTWARE AGREEMENT Display License
iDASHBOARDS DISPLAY LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ONGOING USE OF iDASHBOARDS DISPLAY LICENSE PRODUCTS AND SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS AND SERVICES.
This Agreement was last updated on November 10, 2013. It is effective between You and Us as of the date of You accepting this Agreement.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Order Form” means the iDashboards Display License Order Form for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Form shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under the Order Form.
“We,” “Us” or “Our” means the iViz Group, Inc. a Delaware corporation, (DBA iDashboards) hereinafter referred to as iDashboards.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Equipment” means the LCDs, TVs, or Touchscreen monitors that you have leased per the Order Form for the exclusive purpose of displaying dashboards utilizing the iDashboards Software.
“iDashboards Software” means computer-programming code developed by iDashboards that enables interactive data visualization, and any “Enhancements” (as such term is defined below) thereto. The iDashboards Software also includes computer-programming code developed by iDashboards to integrate with Licensee software, databases and systems.
“Display License” means the Equipment and required iDashboards Software to display dashboards.
“Intellectual Property Rights” means all worldwide copyright, trade secret, know-how, trademark, service mark and patent rights (including rights in inventions, patent applications and letters patent) and all other intellectual and other property rights in and to the iDashboards Software and Documentation and iDashboards’ confidential information relating thereto.
“Bug” or “Bugs” means one or more significant errors in the iDashboards Software which prevent the iDashboards Software from operating substantially in accordance with the published functional specifications therefor.
“Bug Correction” or “Bug Corrections” means one or more modifications or additions that when made or added to the iDashboards Software either establishes material conformity of the iDashboards Software to the published functional specifications or eliminates the practical adverse effect of a Bug
“New Releases” iDashboards shall make each new software release of the iDashboards Software available to You while this Agreement is in effect. Upon Your payment of required Monthly Lease Payments and acceptance of the New Release, the New Release shall be deemed part of the iDashboards Software hereunder.
“Your Facilities” means Your offices and facilities.
“Lease Term” shall begin and end as indicated in the Order Form.
“Support Credit” means a credit that entitles You to contact us during the Lease Term with a technical support inquiry and receive Maintenance and Support Services from Us regarding the Display License.
You hereby agree to lease the Display License during the Lease Term per the terms of this Agreement.
IDASHBOARDS SOFTWARE LICENSE AND OWNERSHIP
You hereby agree to accept the terms of the iDashboards Software license as described herein.
License. Subject to the terms, conditions and limitations set forth herein, We hereby grant You, and You hereby accept, a limited, nonexclusive, nontransferable, nonassignable license under iDashboards’ Intellectual Property Rights to install a single copy or multiple copies of the iDashboards Software for the Display License, however, that the total number of all such installed copies of the iDashboards Software at Your Facilities pursuant to the foregoing subsection shall not at any one time exceed the “Number of Displays” leased by You; use the Documentation solely in support of Your authorized use of the iDashboards Software; and make and use one copy of the iDashboards Software for nonproductive backup and archival purposes only, subject to Your obligation to affix and at all times maintain a Proprietary Notice on the media for such backup copy. We shall have the right to perform audits and other inspections (including through the use of software) from time to time at Your Facilities in order to verify that You are in compliance with the issued license.
The license and all other rights granted to You hereunder shall immediately and automatically terminate in the event more than the above licensed number of copies of the iDashboards Software are used by You without iDashboards’ prior express written consent as memorialized in a Supplemental License Agreement fully executed by both parties.
You acknowledge that iDashboards owns all right, title and interest in and to the iDashboards Software, Documentation and Intellectual Property Rights and all confidential information related thereto and that You shall have only those license rights expressly granted to it hereunder. By way of example only, and without limitation, You do not have the right to and shall not (and shall not permit any other person or entity to), by electronic or by any other means, except to the extent permitted by law, directly or indirectly (a) make a copy of the iDashboards Software or Documentation or any part thereof except as expressly provided herein; (b) publish, distribute, rent, lease, sell or otherwise transfer the iDashboards Software or any part thereof; (c) remove or obscure any Proprietary Notice from the iDashboards Software or Documentation; or (d) reverse engineer, decompile, disassemble, translate or prepare derivative works of the iDashboards Software or any part thereof. You agree to and shall protect the confidentiality of and not disclose to others any and all confidential and proprietary information embodied in the iDashboards Software or Documentation or disclosed in the course of Maintenance and Support Services, including but not limited to the Intellectual Property Rights therein. The confidentiality and non-disclosure obligations set forth herein shall survive the expiration or termination of this Agreement, if any, except only with respect to any portion of the Confidential Information which itself is, and whose technical and commercial significance is, made conveniently available to the applicable trade or portion of the public by iDashboards, is disclosed to You by a third party who did not obtain the same directly or indirectly from iDashboards or was known to You (in writing) prior to disclosure to it by iDashboards.
You do not have the right to assign, sublicense or otherwise transfer any of the rights granted hereunder, and any purported assignment, sublicense or other transfer contrary to the foregoing shall be void and of no effect. iDashboards shall have the right to assign this Agreement or any of the rights and obligations hereunder to any successor or any other party. All rights not expressly granted to You in this Agreement are reserved by Us, and You may not use the iDashboards Software or Documentation in any manner not expressly authorized by this Agreement. You may use the iDashboards Software and Documentation for Your internal business operations only and not by, or for the benefit of any third party.
Ownership of iDashboards Software. You acknowledge and agree that, notwithstanding any provision of this Agreement, iDashboards Software is the exclusive property of iDashboards, and that iDashboards owns or has licensed all software used in the iDashboards Software.
You agree not to challenge in any country or other jurisdiction iDashboards’ ownership of all right, title and interest in any kind or nature in, to, and related to the iDashboards Software, any component and/or portion thereof, including any Intellectual Property Rights therein.
Data Visualization Developments. All technology (including without limitation all inventions, discoveries, techniques, processes, designs, specifications, algorithms, software, interfaces, protocols, know-how and trade secrets) which may be created as Enhancements to or improvements, implementations or derivations of the iDashboards Software or based on or made as a result of use of the iDashboards Software shall belong to iDashboards and to the extent that they do not, are hereby assigned to iDashboards. All Developments hereby are and shall be included in iDashboards Software and are and shall be licensed to You according to the terms and conditions in this Agreement.
MAINTENANCE AND SUPPORT SERVICES
Provided that You have Support Credit(s) with us and You are not in default of any of Your license obligations, obligations to pay for Monthly Lease Payments or other material obligations hereunder, We shall provide the following Maintenance and Support Services to You at no additional charge during the term of this Agreement:
(a) Telephone Support: We will provide reasonable telephone support services during Our normal business hours in order to allow You to report problems and seek assistance in the use of the iDashboards License;
(b) Bug Correction: We will use reasonable diligence to correct verifiable and reproducible Bugs which have been reported by You in accordance with Our standard reporting procedures and provide Bug Corrections therefor. A Bug Correction, when completed, may be provided in the form of a “temporary fix,” which shall consist of sufficient programming code and operating instructions to implement a Bug Correction. If requested by Us, You shall provide a listing of output and any other data or information that We may require in order to reproduce the Bug and the operating conditions under which it occurred or was discovered;
(c) General Enhancements: From time to time We will provide New Releases to You at no additional charge as part of the Maintenance and Support Services.
(d) Custom Enhancements: Should You require any design or functionality enhancements that is not part of current release, it will be governed by a separate Professional Services Agreement.
(e) We will provide Maintenance and Support Services only with respect to the current release of the iDashboards Software for the Display License and the release immediately preceding the current release.
(f) Maintenance and Support Services shall not cover any problems resulting from (i) modifications to the iDashboards Software not made or authorized by Us or (ii) the misuse or improper use of the iDashboards Software.
(g) If the Display License is obtained through one of Our authorized resellers, You shall contact the authorized reseller for Maintenance and Support Services.
Monthly Lease Payments per the Order Form shall be due on the first day of each month, with the first payment due within five (5) days of your signing the Order Form. The lease payments shall be due whether or not You have received notice of a payment due.
In the event that any amount due to iDashboards remains unpaid for thirty (30) days, We may, in Our sole discretion, terminate this agreement and/or withhold any Maintenance and Support Services. Notwithstanding our termination of this agreement or withholding any Maintenance and Support Services, you will owe the full amount for the Lease Term.
In the event that any payment due is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, You agree to pay all reasonable costs of collection, including without limitation, all court costs and reasonable attorney’s fees.
You shall pay (and We shall have no liability for), all taxes, tariffs, duties and other charges imposed or levied by any government or governmental agency, including, without limitation, any federal, state and local sales, use, value-added and personal property taxes on any payments due to Us in connection with the iDashboards License and Maintenance and Support Services provided hereunder, excluding only income taxes on Our income.
If any Fee is not paid within 10 day(s) after the due date, You agree to pay a service charge of $100 for each such delinquency.
CARE AND OPERATION OF EQUIPMENT
The Equipment may only be used and operated in a careful and proper manner. Its use must comply with all laws, ordinances, and regulations relating to the possession, use, or maintenance of the equipment, including registration and/or licensing requirements, if any.
Return of Equipment. At the end of the Lease term, You shall be obligated to return Us the Equipment at Your expense.
OPTION TO RENEW OR PURCHASE
If You are not in default upon the expiration of the Lease Term, You shall have the option to renew the Lease for a similar term per the terms in this Agreement.
If You are not in default under this Lease, You shall have the option to purchase ONLY the Equipment at the end of the Lease Term for one dollar ($1). You shall exercise this option by providing written notice to Us of such intent at least 90 days prior to the end of the Lease Term.
Your purchase of the Equipment does not authorize you the use of iDashboards Software beyond the Lease Term. We may however, provide You the option to Lease the iDashboards Software through a Supplemental License Agreement.
ACCEPTANCE, OWNERSHIP AND STATUS OF EQUIPMENT
You shall inspect each item of Equipment delivered pursuant to this Agreement. You shall immediately notify Us of any discrepancies. If You fail to provide such notice in writing within 5 day(s) after the delivery of the Equipment, You will be conclusively presumed to have accepted the Equipment.
Equipment will be deemed to be personal property, regardless of the manner in which it may be attached to any other property. We shall be deemed to have retained title to the Equipment at all times, unless We transfer the title by sale. You shall immediately advise Us regarding any notice of any claim, levy, lien, or legal process issued against the Equipment.
We warrant that the Equipment is in good working condition, but make no further warranties, express or implied.
THE ONLY WARRANTY MADE BY US WITH RESPECT TO THE iDASHBOARDS SOFTWARE IS THAT THE ORIGINAL PHYSICAL MEDIA IN WHICH iDASHBOARDS SOFTWARE IS EMBODIED AND WHICH IS DELIVERED BY US SHALL BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP FOR A PERIOD OF SIXTY DAYS AFTER DELIVERY. YOUR EXCLUSIVE REMEDY THEREFOR SHALL BE LIMITED TO THE REPLACEMENT OF THE ORIGINAL PHYSICAL MEDIA IF DEFECTIVE. OTHER THAN AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION, THE iDASHBOARDS SOFTWARE, DOCUMENTATION AND MAINTENANCE AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE iDASHBOARDS SOFTWARE IS ASSUMED BY YOU, AND WE ASSUME NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE iDASHBOARDS SOFTWARE. OUR OBLIGATION TO CORRECT BUGS IS LIMITED TO THE PROVISIONS OF MAINTENANCE AND SUPPORT SERVICES SECTION OF THIS AGREEMENT. IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU (INCLUDING LIABILITY TO ANY PERSON(S) OR ENTITY(IES) WHOSE CLAIM OR CLAIMS ARE BASED UPON OR DERIVED FROM A RIGHT TO RIGHTS CLAIMED BY YOU), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID TO US BY OR ON BEHALF OF YOU. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR THE INABILITY TO USE THE iDASHBOARDS LICENSE, EVEN IF WE HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING. WE SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE iDASHBOARDS LICENSE, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING iDASHBOARDS SOFTWARE, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE iDASHBOARDS SOFTWARE OR DATA, CLAIMS BY THIRD PARTIES OR OTHER SIMILAR COSTS. THE REMEDIES AND WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR IMPLIED. NONE OF OUR AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION OR ADDITION TO THIS WARRANTY.
RISK OF LOSS OR DAMAGE
Upon acceptance of Equipment, You assume all risks of loss or damage to the Equipment from any cause other than a manufacturing defect, and agree to return it to Us in the condition received with the exception of normal wear and tear, unless otherwise provided in this Agreement.
Unless otherwise provided in this Agreement, if Equipment is damaged or lost, We shall have the option of requiring You to repair the Equipment to a state of good working order, or replace the Equipment with like equipment in good repair, which equipment shall become Our property and subject to this Agreement.
LIABILITY AND INDEMNITY
Liability for injury, disability, and death of workers and other persons caused by operating, handling, or transporting the Equipment during the term of this Lease is Your obligation, and You shall indemnify and hold Us harmless from and against all such liability. You shall maintain liability insurance of at least $1,000,000.
The occurrence of any of the following shall constitute a default under this Lease:
A. The failure to make a required payment under this Agreement when due.
B. The violation of any other provision or requirement that is not corrected within ten (10) days after written notice of the violation is given.
C. Your insolvency or bankruptcy.
D. The subjection of any of the Equipment to any levy, seizure, assignment, application or sale for or by any creditor or government agency.
Rights on Default. In addition to any other rights afforded to Us by law, if You are in default under this Lease, without notice to or demand on You, We may take possession of the Equipment as provided by law, deduct the costs of recovery (including attorney fees and legal costs), repair, and related costs, and hold You responsible for any deficiency. Our rights and remedies provided by law and this Agreement shall be cumulative in nature. You shall be obligated to re-lease the equipment, or otherwise mitigate the damages from the default, only as required by law.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Michigan (without reference to its rules relating to conflicts of laws) and to be performed entirely within Michigan. The parties agree, to the maximum extent permitted by law, that the venue for any litigation or dispute arising out of this Agreement shall be Oakland County and State of Michigan and that the Federal and State courts therein shall have jurisdiction over the subject matter and the parties.
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the address shown in the Order Form, and in the case of billing-related notices, to the relevant billing contact designated by You.
Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Arbitration. Any controversy or claim relating to this Agreement, including the construction or application of this Agreement, will be settled by binding arbitration under the rules of the American Arbitration Association, and any judgment granted by the arbitrator(s) may be enforced in any court of proper jurisdiction.
Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Display License. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit access or use of Display License in violation of any U.S. export embargo, prohibition or restriction.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Non-Solicitation. Either Party shall not directly or indirectly solicit for employment any Employee or Contractor while such person is employed or Contracted by the other party. The non-solicitation period will be for 12-months starting on the earlier of: (i) termination of the Employee’s employment or Contractor’s contract with the other party, or (ii) termination or expiration of this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Certification. You certify that the Your credit card or mode of payment information and contact information submitted to Us per the Order Form are true and correct and any material misrepresentation will constitute a default under this Agreement. Should any of the payment or contact information change, you assume full responsibility to inform Us in a timely manner to avoid any payment delays or default.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of any terms in this Agreement.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
End of Agreement