THIS END-USER LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR SINGLE ENTITY) (HEREAFTER REFERRED TO AS “LICENSEE”) AND ICONITEL CONSULTING SERVICES, INC., A NORTH CAROLINA CORPORATION (HEREAFTER REFERRED TO AS “LICENSOR”) FOR THE USE OF THE AREUSCONNECT SOFTWARE ACCOMPANYING THIS AGREEMENT (THE “SOFTWARE”).
BY COPYING, LOADING, INSTALLING, ACCESSING, RUNNING OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT LICENSEE IS NOT AUTHORIZED TO ACCESS OR USE THE SOFTWARE AND SHOULD IMMEDIATELY DISCONTINUE USE OF THE SOFTWARE AND DELETE AND/OR DESTROY THE SOFTWARE AND ANY OTHER MATERIALS OR DOCUMENTATION PROVIDED BY LICENSOR TO LICENSEE CONCERNING THE SOFTWARE.
The Software and any written, audio, visual and graphical content provided through the use of the Software or services provided through websites (including hosting), online solutions, and online platforms (collectively the “Materials”) is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties, and unless otherwise expressly state herein, is owned exclusively by Licensor. The Software is licensed, not sold.
- Grant of License. Licensor hereby grants Licensee a nonexclusive, nonsublicensable, nontransferable license, to access and use the Software in machine-readable, object code form according to the terms and conditions herein. Except for the license granted expressly herein, no right, title, or interest in the Software is transferred to Licensee by this Agreement.
- Rights and Limitations. Licensee agrees to solely use the Software for Licensee’s internal business use and will not provide access to the Software to anyone other than its employees, contractors or consultants under written contract agreeing to be bound by terms at least as protective as this Agreement. Licensee shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or the Materials in any way; (ii) make copies, modify or make derivative works based upon the Software or the Materials; (iii) reverse engineer, decompile, disassemble, or reconfigure the Software; (iv) access the Software or Materials in order to build a competitive product or service; or (v) attempt to gain unauthorized access to the Software or the Materials.
- Maintenance; Updates. Licensor may, from time-to-time, and in its exclusive discretion, update the Software in order to, among other things, correct errors or bugs, improve the performance of the Software or increase the functionality of the Software. Licensee acknowledges that such updates may change or modify certain functions or features of the Software. Licensor shall not be liable to Licensee for any specific changes to the features or functionality of the Software and Licensee’s exclusive recourse if it is not satisfied with any update or improvement is to stop using the Software. Nothing herein shall obligate Licensor to provide any maintenance, support or updates for the Software and nothing herein shall be interpreted as granting Licensee a right to receive any upgrades, patches, enhancements, bug fixes, new versions or new releases of the Software.
- Intellectual Property.
- Licensee acknowledges and agrees that the Software and/or Materials is/are being licensed to Licensee, not sold, and that other than the limited license granted herein, Licensee shall have no right, title or interest in or to the Software. As between Licensor and Licensee, all title, intellectual property rights, including without limitation, any patent and copyrights in and to the Software and the Materials is owned by and remains with Licensor.
- Licensor may use information collected by Licensee in an anonymized format for any business purpose. Licensor shall anonymize data in such a format to ensure that Licensee is not identifiable and also to ensure compliance with all confidentiality requirements of this Agreement.
- Payment. Licensee will pay Licensor fees set forth in the attached Order Form within thirty (30) days of invoice date. A finance charge in an amount equal to the lower of one and one-half (1.5%) per month or the maximum rate allowed by law, may be assessed on payment not received by Licensee on or prior to the date such payment become due.
- Warranty/Limitation of Liability.
- Disclaimer. THE SOFTWARE, MATERIALS, AND ANY UPDATES OR IMPROVEMENTS TO THE SOFTWARE PROVIDED BY LICENSOR TO LICENSEE ARE PROVIDED “AS IS”. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED BY LICENSOR TO THE EXTENT ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SOFTWARE OR THAT THE SOFTWARE WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, OR THAT ERRORS OR BUGS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE’S FUNCTIONALITY OR SERVICES WILL MEET LICENSEE’S REQUIREMENTS.
- Limitation of Liability. LICENSOR SHALL NOT BE LIABLE FOR ANY ACTIONS OR DECISIONS THAT LICENSEE MAY TAKE BASED ON THE SOFTWARE ORMATERIALS, CONSULTING SERVICES DELIVERABLES OR ANY OTHER ADVISORY SERVICE LICENSOR PROVIDES HEREUNDER. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST DATA, LOST REVENUE, LOST PROFITS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE SOFTWARE OR THE USE OR INABILITY TO USE THE RESULTS OF THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, EXCEED THE LICENSE FEE PAID BY CUSTOMER FOR THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
- Authority. Licensee hereby represents and warrants that it has the full power and authority to accept the terms of this Agreement on behalf of Licensee and that Licensee agrees to be bound by the terms of this Agreement.
- Termination. This Agreement shall commence upon Licensee’s first copying, loading, installing, accessing, running or otherwise using the Software and shall continue in effect, unless earlier terminated as provided herein, until the Licensee stops using the Software and deletes the Software from all of Licensee’s systems. Without prejudice to any other rights, Licensor may terminate this agreement, effective immediately, if Licensee fails to comply with the terms and conditions herein. In the event of termination of its rights under the Agreement, Licensee must immediately cease using the Software and remove or destroy the Software and all Materials from Licensee’s systems.
- Confidentiality. Licensee shall use its best efforts to protect all proprietary, confidential, technical and/or non-public information pertaining to or in any way connected to the Software and/or the business affairs of Licensor (the “Confidential Information“). Licensee shall not disclose or publicize the Confidential Information without the Licensor’s prior written consent. Licensee shall use its commercially reasonable efforts (but in no case less than the efforts used to protect its own proprietary information of a similar nature) not to disclose and not to use the Confidential Information for its own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement. Confidential Information shall not include information which, as provable by competent evidence, was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of Licensee; (ii) already known to Licensee prior to disclosure pursuant to this Agreement; or (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others. Notwithstanding the foregoing, Licensor may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Licensor will give Company prompt notice of any such legal or governmental demand and reasonably cooperate with Company in any effort to seek a protective order or otherwise to contest such required disclosure, at Company’s expense. Licensor and Licensee agree to comply with all applicable data privacy laws and regulations.
- Indemnification. Licensee will defend, indemnify, and hold Licensor, its Affiliates, and their respective successors, directors, officers, employees, and agents harmless from and against all third-party claims to the extent such claims arise of or relate to: (i) Licensee’s breach of this Agreement; (ii) Licensee’s negligence or intentional misconduct of Licensor; or (iii) Licensee’s failure to comply with applicable laws, rules, or regulations.
- Acknowledgement. Copying, downloading, installing, accessing or using the Software constitutes acceptance of this Agreement in its entirety. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
- Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
- Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
- Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without Licensor’s express written consent. Any attempted assignment in violation of this provision shall be void ab initio. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of North Carolina, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Wake County, North Carolina. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the Sale of Goods.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.