End User License Agreement
Vyopta’s vControl®, vAnalytics™ data collectors, and certain other lightweight applications that are used in conjunction with the Vyopta SaaS platform are governed by the following End User License.
IMPORTANT READ CAREFULLY: THIS VYOPTA END USER AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (IN YOUR CAPACITY AS AN INDIVIDUAL AND AS AN AGENT FOR YOUR COMPANY, INSTITUTION, OR OTHER ENTITY) AND VYOPTA INCORPORATED. ACCESSING, DOWNLOADING, INSTALLING, USING OR COPYING OF THE SOFTWARE BY YOU OR A THIRD PARTY ON YOUR BEHALF INDICATES YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS, DOWNLOAD, INSTALL, USE OR COPY THE SOFTWARE. IN THE ABSENCE OF THIS AGREEMENT, YOU HAVE NO RIGHTS IN THE SOFTWARE.
Vyopta End User License Agreement
The software and related documentation (the “Software”) of Vyopta (“Vyopta”) are licensed, not sold, to You (“Licensee” or “You”) for use only under the terms of this End User License Agreement (“Agreement”). Vyopta reserves all rights not expressly granted to You under this Agreement.
1. Grant and Scope of License.
A. Subject to Section 2 below, and without warranty of any nature, Vyopta grants to You a nonexclusive license to download, install and use the Software binary in executable form on one iOS device, PC or server (“Device”) that You own or control for use under the terms and conditions set forth herein (“License”). This license does not allow You to use the Software on any iOS, PC or server that You do not own or control, and You may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may not copy, adapt, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof. You may not use the Software as a part of any third party product, except to the extent and manner that Vyopta has expressly permitted in writing. You may not evaluate or view the Software for the purpose of designing, modifying or otherwise creating any software or product, or any portion thereof, which performs functions similar to the functions performed by the Software. Any attempt to do so is a violation of the rights of Vyopta and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Vyopta that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
B. If you did not purchase a License to use the Software but were given or downloaded a copy of the Software for evaluation purposes only, then the rights granted in Section
1.A. above do not apply and Your use is limited to evaluating the Software for purchase for an evaluation period determined by Vyopta. At the end of the evaluation period or earlier upon request of Vyopta, You will cease use of the Software, remove the Software from Your devices and destroy all copies of the Software. The Software may automatically disable itself at the end of the evaluation period. Notwithstanding anything to the contrary elsewhere in this Agreement, You may not distribute any portion of the Software. A separate license is required for each additional use and/or individual user or device in all other cases.
2. Rights Reserved; Ownership.
A. This License does not grant you any right to enhancements or updates to, or support or maintenance for, the Software or any modifications made by Vyopta. Vyopta is free to license the Software on terms different from those contained herein. Vyopta hereby expressly reserves all rights in the Software which are not expressly granted to You under the License. Vyopta reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
B. Vyopta owns all intellectual property title and rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software, any modifications, and all copies thereof. The Software is protected by copyright laws and international treaty provisions. The Software includes trade secrets and information that is confidential and proprietary to Vyopta and You agree to take all actions to protect the confidentiality of such information. You will not remove any copyright notice or any proprietary trade or service marks of Vyopta from the Software. You agree to prevent any unauthorized copying of the Software. Except as expressly provided herein, Vyopta does not grant any express or implied right to You under any patents, copyrights, trademarks or trade secret information.
3. Future Functionality. Vyopta is not in control of the firmware of the Device, and thus, cannot guarantee the future functionality of the application.
4. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VYOPTA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VYOPTA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERRORFREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VYOPTA OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL VYOPTA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF VYOPTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Vyopta’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
6. Indemnification. You shall defend, indemnify and hold harmless Vyopta and their respective directors, officers, agents, employees and volunteers from and against any and all claims, suits, losses, damages, costs, fees and expenses arising out of or in connection with this Agreement. You shall pay all costs incurred by Vyopta in enforcing this provision, including reasonable attorneys’ fees and court costs. You agree that under no circumstances will Vyopta indemnify You or any other person.
7. Export. You may not use or otherwise export or reexport the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or reexported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
8. Commercial Items. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.72021 through 227.72024, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
10. General Provisions. This Agreement represents the complete agreement concerning this license, supersedes all prior agreements, and may be amended only by a writing executed by duly authorized representatives of both parties. The provisions of any order document used by You that are contrary to the terms hereof shall be of no effect (notwithstanding any provisions in such order document to the contrary). This Agreement is governed by, and is to be interpreted in accordance with the laws of the State of Texas, excluding its conflict of law rules to the contrary. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement. This Agreement will inure to the benefit of, and is freely assignable to, Vyopta’s successors and assignees of rights in the Software. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.