SOFTWARE TERMS OF USE
These Software Terms of Use ("Terms of Use") govern the use of the clearView software (the "Software"), including all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software or its use or specifications (the "Documentation") provided by Innovative Product Achievements, LLC (“Licensor”) to you, whether as an individual or on behalf of your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Software is installed ("Licensee").
BY INSTALLING OR USING THE SOFTWARE LICENSEE: (i) REPRESENTS THAT LICENSEE IS DULY AUTHORIZED TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPTS THESE TERMS OF USE AND AGREES THAT LICENSEE IS LEGALLY BOUND BY THEM. IF LICENSEE DOES NOT AGREE TO THESE TERMS OF USE, THEN LICENSEE MUST NOT ACCESS OR USE, THE SOFTWARE.
1. License Grant. Subject to Licensee’s compliance with these Terms of Use, Licensor hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, license to use the Software solely in accordance with the Documentation, as installed on Licensee’s equipment (whether owned or leased) and only for Licensee's internal business purposes. The foregoing license is subject to Licensee’s timely payment of all fees set forth in the applicable Licensor-issued purchase document (“Order Form”).
2. Use Restrictions. Licensee shall not, directly or indirectly:
(a) use the Software or Documentation except as set forth in Section 1;
(b) copy the Software or Documentation, in whole or in part;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software or Documentation, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems;
(i) use the Software or Documentation in violation of any law, regulation, or rule; or
(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor's commercial disadvantage.
3. Term and Termination.
(a) Licensee’s access to the Software and the license granted hereunder shall remain in effect for the term set forth in the applicable Order Form or until earlier terminated as set forth herein.
(b) Licensor may terminate Licensee’s access to the Software, effective upon written notice to Licensee, if Licensee breaches these Terms of Use or fails to timely pay any fees set forth in the applicable Order Form.
(c) Licensor may terminate Licensee’s access to the Software, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(d) Upon expiration or earlier termination of your access to the Software, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee's obligation to pay all fees that may have become due before such expiration or termination.
4. Compliance Measures.
The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software:
(a) beyond the scope of the license granted to pursuant to Section 1; or
(b) prohibited under Section 2.
Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
5. Changes. Licensor reserves the right, in its sole discretion, to make changes to the Software, including issuing enhancements, modifications, new versions, and making changes to the format, medium or method of delivery. Licensor will provide Licensee at least one (1) month’s prior notice if Licensor discontinues material functionality of the Software. Notwithstanding the foregoing, notice will not be required if the month notice period (a) would pose a security or intellectual property issue to Licensor or the Software, (b) is economically or technically burdensome, or (c) would cause Licensor to violate legal requirements.
6. Privacy. Licensee agrees to Licensor’s Privacy Policy, which may be changed from time to time.
7. Collection and Use of Information.
(a) Licensor may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee, including but not limited to: (i) improving the performance of the Software or developing updates; (ii) Lincesor’s internal business purposes; and (iii) verifying compliance with the terms of this Agreement and enforcing Licensor's rights, including all intellectual property rights in and to the Software.
8. Intellectual Property Rights. Licensee acknowledges that the Software is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under these Terms of Use, or any other rights to the Software or Documentation other than to use the Software and Documentation in accordance with the license granted under these Terms of Use, subject to all terms, conditions, and restrictions. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and Documentation and all intellectual property rights arising out of or relating to the Software and Documentation, subject to the license expressly granted to the Licensee in these Terms of Use. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
9. Confidentiality. Licensee may use Licensor’s Confidential Information only in connection with Licensee’s use of the Software as permitted under these Terms of Use. Licensee will not disclose Licensor’s Confidential Information during the Term, or the five (5) year period following the Term. Licensee will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Licensor’s Confidential Information, including, at a minimum, those measures Licensee take to protect Licensee’s own confidential information of a similar nature; provided, Licensee may disclose Licensor’s Confidential Information to its officers, employees, and contractors solely as necessary to use the Software. “Confidential Information” shall mean all nonpublic information disclosed by Licensor, its affiliates, business partners or its or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Licensor’s Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms of Use; (ii) can be shown by documentation to have been known to Licensee at the time of Licensee’s receipt from Licensor; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by Licensee without reference to the Licensor Confidential Information.
10. Warranty Disclaimer. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, LICENSOR DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, COURSE OF DEALING, USAGE, OR TRADE, OR ORAL OR WRITTEN STATEMENTS OTHER THAN THOSE CONTAINED HEREIN, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11. Indemnification. Licensee agrees to defend, indemnify, and hold harmless Licensor, its contractors, subsidiaries, and affiliated companies, and all of their respective directors, officers, employees, and representatives from and against any and all third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) relating to or arising from any misuse of the Software whether or not authorized by Licensee or any breach of these Terms of Use.
12. Limitation of Liability. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE. IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT ALLOWED BY LAW, LICENSOR’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL BE LIMITED TO THE PRICE ACTUALLY PAID FOR THE SOFTWARE UNDER THE CURRENT ORDER FORM.
13. Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
14. Miscellaneous.
(a) Assignment. Licensee will not assign or otherwise transfer these Terms of Use or any of its rights and obligations under these Terms of Use, without Licensor’s prior written consent. Licensor may assign these Terms of Use without Licensee’s consent (a) in connection with a merger, acquisition, or sale of all or substantially all of Licensor’s assets, or (b) to any affiliate or as part of a corporate reorganization.
(b) Governing Law. These Terms of Use are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware. Any disputes arising out of these Terms of Use or Licensee’s use of the Software shall be subject to the jurisdiction of the federal and state courts of the State of Delaware.
(c) Force Majeure. Licensor and its affiliates will not be liable for any delay or failure to perform any obligation under these Terms of Use where the delay or failure results from any cause beyond Licensor’s reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts, or orders of government, acts of terrorism, or war.
(d) Independent Parties and Authority to Bind. Licensor and Licensee are independent contractors, and these Terms of Use will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
(e) No Waivers. The failure by Licensor to enforce any provision of these Terms of Use will not constitute a present or future waiver of such provision nor limit Licensor’s right to enforce such provision later.
(f) Severability. If any portion of these Terms of Use is held to be invalid or unenforceable, the remaining portions of these Terms of Use will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to give effect and intent of the original portion to the extent legally permissible. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms of Use, but the rest of these Terms of Use will remain in full force and effect.
(g) Survival. Sections 3, 6, 7, 8, 9, 10, 11, 12, 13, and 14 of these Terms of Use, as well as any other provision that, to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of these Terms of Use.