State of Colorado Rev. 133C774
This End-User License Agreement (this “EULA”) is a legal agreement between Software User (“Licensee”) and Visible Network Labs (“Licensor”), the author of the Aspen Platform, the PARTNER Tool, and the Person Centered Network App, including all HTML files, XML files, Java files, graphics files, animation files, data files, technology, development tools, scripts and programs, both in object code and source code (the “Software”), the deliverables provided pursuant to this EULA, which may include associated media, printed materials, and “online” or electronic documentation.
By installing, copying, or otherwise using the Software, Licensee agrees to be bound by the terms and conditions set forth in this EULA. If Licensee does not agree to the terms and conditions set forth in this EULA, then Licensee may not download, install, or use the Software.
1. Grant of License
A) Scope of License. Subject to the terms of this EULA, Licensor hereby grants to Licensee on a non-exclusive basis solely for use by you, and you alone, under the terms of this Agreement. VNL, (and, to the extent applicable, its licensors), retains all title to and ownership of the Software and reserves all rights not expressly granted to you hereby. The Software is being distributed by digital download.
B) Installation and Use. Licensee may install and use a maximum of one (1) user of the PARTNER Tool Software and up to ten (10) users of the Person-Centered Network App Software solely for Licensee's business use.
C) No Transfer of License. You may not transfer your license of the Software to anyone.
2. Description of Rights and Limitations
A) Your Aspen, PARTNER or PCN APP Account. If you create an account in the Software, you are responsible for maintaining the security of your account and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the project. You must immediately notify Visible Network Labs of any unauthorized uses of your account or any other breaches of security. Visible Network Labs will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
B) Limitations. You acknowledge that the Software contains trade secrets and other proprietary information of Visible Network Labs and/or its licensors. Licensee and third parties may not reverse engineer, decompile, disassemble the Software, or engage in any other activities to obtain underlying information that is not visible to the user in connection with normal use of the Software.
C) Update and Maintenance. This license does not grant you any right to any enhancements or updates to the Software, nor any support services. The Software has an auto-update function that automatically checks Visible Network Labs or its licensor's servers on the Internet for updates for the Software, such as bug fixes, patches, database updates, and enhanced functions. You agree that Visible Network Labs may, through the auto-update function, download updates and install them as part of your Software.
D) Use on Multiple Computers by a Single User. The Software may be used by you only on multiple computers, tablets, and phones.
3. Title to Software. Licensor represents and warrants that it has the legal right to enter into and perform its obligations under this EULA, and that use by the Licensee of the Software, in accordance with the terms of this EULA, will not infringe upon the intellectual property rights of any third parties.
4. Intellectual Property. All now known or hereafter known tangible and intangible rights, title, interest, copyrights and moral rights in and to the Software, including but not limited to all images, photographs, animations, video, audio, music, text, data, computer code, algorithms, and information, are owned by Licensor. The Software is protected by all applicable copyright laws and international treaties.
5. Payment and Renewal.
A. General Terms. Optional paid services such as Aspen, PARTNER, and PCN App accounts are available on the Website (any such services, a “Premium Account”). By selecting a Premium Account you agree to pay Visible Network Labs the monthly or annual subscription fees indicated for that service. Payments will be charged on a pre-pay basis on the day you sign up for a Premium Account and will cover the use of that service for a monthly or annual subscription period as indicated. Premium Account fees are not refundable.
B. Automatic Renewal. Unless you notify Visible Network Labs before the end of the applicable subscription period that you want to cancel a Premium Account, your Premium Account subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such Premium Account (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time by submitting a request in writing to Visible Network Labs.
6. Support. Licensor will provide email support, available as needed for the duration of use by Licensee.
7. Termination. This EULA is effective for 12 months or until:
A) Automatically terminated or suspended if Licensee fails to comply with any of the terms and conditions set forth in this EULA; or
B) Terminated or suspended by Licensor, with or without cause.
In the event this EULA is terminated, you must cease use of the Software and destroy all copies of the Software.
C) If you wish to terminate this Agreement or your VNL account (if you have one), you may simply discontinue using the Software. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
8. Jurisdiction. This EULA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Colorado, without regard to conflicts of law’s provisions thereof. Any legal action or proceeding relating to this EULA shall be brought exclusively in courts located in Denver, CO, and each party consents to the jurisdiction thereof. The prevailing party in any action to enforce this EULA shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees. This EULA is made within the exclusive jurisdiction of the United States, and its jurisdiction shall supersede any other jurisdiction of either party’s election.
9. Non-Transferable. This EULA is not assignable or transferable by Licensee, and any attempt to do so would be void.
10. Severability. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable.
11. Warranty Disclaimer. Licensor, and author of the software, hereby expressly disclaim any warranty for the software. The software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Licensee accepts and assumes any and all risk arising out of use or performance of the software to achieve your intended results, and for the installation, use and results obtained from the Software. You also assume the entire risk as it applies to the quality and performance of the Software. Should the Software prove defective, you (and not Visible Network Labs, or its distributors or dealers) assume the entire cost of all necessary servicing, repair or correction.
12. Limitation of Liability. Licensor shall not be liable to licensee, or any other person or entity claiming through licensee any loss of profits, income, savings, or any other consequential, incidental, special, punitive, direct or indirect damage, whether arising in contract, tort, warranty, or otherwise. These limitations shall apply regardless of the essential purpose of any limited remedy. Under no circumstances shall licensor’s aggregate liability to licensee, or any other person or entity claiming through licensee, exceed the financial amount actually paid by licensee to licensor for the software.
13. Injunctive Relief. You acknowledge that the Software and the Service contain Visible Network Labs’ proprietary and confidential information, and that disclosure of such information or misuse of the Software will give rise to irreparable injury Visible Network Labs’, inadequately compensable in damages. Accordingly, Visible Network Labs’ may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Said relief will be available without the requirement of posting a bond or undertaking.
14. General Representation and Warranty. You represent and warrant that (i) your use of the Software will be in strict accordance with the Visible Network Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Software will not infringe or misappropriate the intellectual property rights of any third party.
15. U.S. Government Restricted Rights. All Software and related documentation are provided with restricted rights. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subdivision (b)(3)(ii) of the Rights in Technical Data and Computer Software Clause at 252.227-7013. Manufacturer is Visible Network Labs. If you are sub-licensing or using the Software outside of the United States, you will comply with the applicable local laws of your country, U.S. export control law, and the English version of this Agreement. You are responsible for complying with all trade regulations and laws both foreign and domestic.
16. Export Restrictions. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
17. Miscellaneous. This EULA is binding on you as well as your employees, employers, contractors and agents, and on any successors and assignees. Neither the Software nor any information derived therefrom may be exported except in accordance with the laws of the U.S. or other applicable provisions. This Agreement is governed by the laws of the State of Colorado (except to the extent federal law governs copyrights and federally registered trademarks) without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Colorado. This License Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. This EULA constitutes the entire agreement between Licensor and Licensee and supersedes all prior understandings of Licensor and Licensee, including any prior representation, statement, condition, or warranty with respect to the subject matter of this EULA. The terms and conditions contained in this License Agreement may not be modified unless both you and an authorized representative of Visible Network Labs execute a separate written instrument.
For additional information regarding this EULA, please contact: Visible Network Labs, Attn: Visible Network Labs, 1536 Wynkoop St, Suite 913, Denver, CO 80202, (303) 601-8874
18. Special Provisions Applicable to the European Union.
If you acquired the Software in the European Union (EU), the following provisions also apply to you. If there is any inconsistency between the terms of the Software License Agreement set out earlier and the following provisions, the following provisions shall take precedence.
Decompilation:
You agree not for any purpose to transmit the Software or display the Software's object code on any computer screen or to make any hard copy memory dumps of the Software's object code. If you believe you require information related to the interoperability of the Software with other programs, you shall not decompile or disassemble the Software to obtain such information, and you agree to request such information from Visible Network Labs at the address listed earlier. Upon receiving such a request, Visible Network Labs shall determine whether you require such information for a legitimate purpose and, if so, Visible Network Labs will provide such information to you within a reasonable time and on reasonable conditions.
Limited Warranty:
EXCEPT AS STATED EARLIER IN THIS AGREEMENT, AND AS PROVIDED UNDER THE HEADING "STATUTORY RIGHTS", THE SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Remedy and Damages:
THE LIMITATIONS OF REMEDIES AND DAMAGES IN THE SOFTWARE LICENSE AGREEMENT SHALL NOT APPLY TO PERSONAL INJURY (INCLUDING DEATH) TO ANY PERSON CAUSED BY VISIBLE NETWORK LABS' NEGLIGENCE AND ARE SUBJECT TO THE PROVISION SET OUT UNDER THE HEADING "STATUTORY RIGHTS".
END OF AGREEMENT