VOUND COLORADO LTD SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING OUR SOFTWARE. BY USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF OUR SOFTWARE FOR THE FIRST TIME ON OR AFTER THE VERSION DATE NOTED ABOVE, OR BY CHOOSING TO CONVERT TO AN ANNUAL LICENSE, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU ARE USING THE SOFTWARE ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE FULL AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU ARE ACCEPTING SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE.
Vound, its affiliates and its suppliers own or use under license all intellectual property in the Software. Vound permits You to Use the Software only in accordance with the terms and conditions of this Agreement.
- Definitions. "Software" means (a) all software files and other computer information provided with this Agreement, including without limitation (i) Intella 10, Intella 100, Intella 250, Intella Professional, Intella TEAM, Intella Viewer, Intella Connect, Intella Connect Plus, Intella Node, (ii) related explanatory written materials or files (“Documentation”), and (iii) fonts; and (b) upgrades, modified versions, updates, additions to and copies of such information, if any, that are made available during the term of an annual license or during the first year only of a perpetual license, and otherwise as provided under separate terms. “Use” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation. “Vound” means Vound Colorado, Ltd, a Colorado limited liability corporation, 10643 N FRANK LLOYD WRIGHT BLVD, SCOTTSDALE, AZ 85259. “You” means the individual Using the Software or the legal entity and its affiliates on whose behalf the Software is being Used. “Maintenance and Support Agreement” means the Vound Colorado Ltd. Software Maintenance and Support Agreement, located at https://www.vound-software.com/SMA.
- License. Subject to the terms and conditions of this Agreement, including without limitation payment of the license fee pursuant to Section 8 below, Vound grants to You a non-exclusive, non-transferable, limited right to Use the Software selected by You for download (the “Licensed Product”), in object code form only, and associated Documentation, solely for Your internal business purposes. Except as otherwise expressly set forth in this Section 2, no other right or license of any kind is granted to You with respect to the Software. Prior to paying the license fee pursuant to Section 8 below, but subject to all other terms and conditions of this Agreement, your Use of the Licensed Product shall be further limited to internal non-commercial purposes only. You may Use the the Licensed Product on any device connected to the USB device (the “Dongle”) or in which the license key (“SL Key”) issued by Vound is installed. Vound will only issue one Dongle or SL Key in connection with this Agreement, as specified in the invoice. Except as otherwise set forth in the Maintenance and Support Agreement, Vound will not replace lost, stolen or damaged Dongles.
- Restrictions Applicable To Academic Institutions and their Faculty, Staff, and Students. In addition to other licensing restrictions set forth in this Agreement, the following additional restrictions apply to academic institutions and their faculty, staff and students: (a) the production and publication of presentations, dissertations, white papers, reviews and similar work products discussing, analyzing or reviewing the Software shall clearly acknowledge, in the preface or introduction, whether the author(s) and/or contributors were trained and/or certified by Vound in the Use of the Software; and (b) You shall not Use the Software in the production or publication of presentations, dissertations, whitepapers, reviews and similar works until You have paid the License Fee in full.
- Restrictions. With respect to the Software, in whole or in part, You may not: (a) decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to obtain the source code of the Software, except to the extent expressly permitted by applicable law despite this limitation; (b) copy or otherwise reproduce the Software, in any format (electronic, print or other format), except to the extent expressly permitted by Vound in writing; (c) modify, revise, adapt or otherwise prepare derivative works of the Software; (d) distribute, publicly perform or publicly display the Software; (e) Use the Software to operate a service bureau or otherwise rent, lease, loan, sub-license or sell the Software to any other party; (f) permit or authorize any other person or entity to do any of the foregoing. Any rights not explicitly granted under this Agreement are hereby reserved.
- Proprietary Rights. The Licensed Product is being licensed, not sold, to You. You acknowledge that ownership of the Licensed Product, including all intellectual property rights therein and all modifications thereof is, and shall remain in, Vound and its licensor(s). You agree to reproduce and include all copyright and other proprietary notices included in the Licensed Product on any copy, full or partial, of the Licensed Product. The Licensed Product is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties.
- Confidentiality. The Licensed Product is the confidential and proprietary information of Vound and/or its licensors. You agree to Use the Licensed Product only for the purposes specifically contemplated herein and You will use the same degree of care to protect the Licensed Product from unauthorized access, and to prevent unauthorized disclosure or use, as You Use for Your own confidential information and in no case less than a reasonable degree of care.
- Term and Termination. This Agreement is effective from the date You receive access to the Licensed Product, you renew an annual license, you receive a new version of the Licensed Product under a Maintenance Agreement, or you choose to convert to an annual license (the “Effective Date”) and, unless terminated as provided herein, (a) if You have selected and Vound invoices you for an annual license, this Agreement remains in force for a period of one (1) year from the Effective Date for Intella Viewer, Intella 10, Intella 100, Intella 250, Intella Professional, Intella TEAM, Intella Connect, and Intella Connect Plus, or (b) if You receive a new version of the Licensed Product under a Maintenance Agreement and your previous license was perpetual, this Agreement remains in force perpetually, subject to its terms and conditions. Annual licenses require either a Dongle or an SL Key for activation while perpetual licenses require a Dongle for activation. This Agreement will terminate automatically at the end of the annual term unless renewed by You and will terminate immediately without notice if You fail to comply with any term or condition of this Agreement. Furthermore, Vound may terminate this Agreement immediately in accordance with Sections 13 or 15 below. Upon termination, Your access to the Licensed Product will cease immediately.
- License Fee. You shall pay to Vound the license fee indicated in the fee schedule located at https://www.vound-software.com/Retail-Pricing for the Licensed Product (the “License Fee”) within thirty (30) days of the date of invoice from Vound, or, if no invoice has been received, then within fourteen (14) days of installing the Licensed Product on your device. As stated in Section 2 above, You are not permitted to Use the Licensed Product for any business purpose prior to full payment of the license fee.
- Warranties. Vound represents and warrants that Vound has the right to grant licenses to You in accordance with the terms and conditions of this Agreement and that the Licensed Product will conform in material respects to Vound’s then-current Documentation.
- Disclaimers. EXCEPT WITH RESPECT TO THE FOREGOING, AND SUBJECT TO THE LEGAL REQUIREMENT OF ANY JURISDICTION THAT CANNOT BE VARIED BY CONTRACT, YOU ACKNOWLEDGE THAT THE LICENSED PRODUCT IS PROVIDED "AS IS, WHERE IS." ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND/OR WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED. YOU ASSUME ALL RISK AS TO SELECTION, QUALITY, INSTALLATION, RESULTS AND PERFORMANCE OF THE LICENSED PRODUCT AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPLETENESS AND ADEQUACY FOR YOUR PURPOSE. VOUND DOES NOT WARRANT THAT THE LICENSED PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.
- Limitation of Damages. SUBJECT TO THE LEGAL REQUIREMENT OF ANY JURISDICTION THAT CANNOT BE VARIED BY CONTRACT, IN NO EVENT WILL VOUND BE LIABLE FOR ANY PUNITIVE, SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE LICENSED PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF VOUND HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL VOUND’S AGGREGATE LIABILITY TO YOU FOR CLAIMS RELATING TO YOUR USE OR INABILITY TO USE THE LICENSED PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU FOR USE OF THE LICENSED PRODUCT. THIS SECTION ALLOCATES THE RISK OF DAMAGES OR LOSS RESULTING FROM USE OF THE LICENSED PRODUCT AND CONSTITUTES A MATERIAL INDUCEMENT TO VOUND TO ENTER INTO THIS AGREEMENT. ACCORDINGLY, YOU AGREE THAT DAMAGES AND LIABILITY WILL BE SUBJECT TO THESE LIMITATIONS, EVEN IF THE REMEDY LIMITED AS SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification by You. As an express condition to Your Use of the Licensed Product, You agree to defend, indemnify and hold harmless Vound from any and all claims by third parties arising out of or in connection with (a) Your Use of the Licensed Product in any manner that is not in compliance with the Documentation or this Agreement, or (b) actual or alleged violation of any third party’s proprietary rights due to the combination of this Licensed Product with any third party products.
- Indemnification by Vound. Vound will defend You in any suit or cause of action alleging that the Licensed Product, as provided by Vound and used in accordance with the terms of this Agreement, infringe upon any United States copyright, trade secret, or other proprietary right of a third party. Vound will pay damages, including reasonable attorneys' fees, assessed against You in any such suit or cause of action, provided that (i) Vound is promptly notified in writing of such suit or cause of action, (ii) Vound controls any negotiations or defense and You assist Vound as reasonably required by Vound, and (iii) You take all reasonable steps at Vound’s expense to mitigate any potential damages that may result. The foregoing indemnification will not apply and Vound will not be liable for any damages assessed in any suit or cause of action to the extent resulting from (a) Your Use of the Licensed Product in any manner that is not in compliance with the Documentation or this Agreement, or (b) actual or alleged violation of any third party’s proprietary rights due to the combination of this Licensed Product with any third party products. If Vound reasonably believes the Licensed Product might be, or if the Licensed Product is found to be, infringing or violating the proprietary rights of any third party, then Vound shall have the option, at its expense, to: (a) modify the Licensed Product to be non-infringing; (b) obtain for You a license to continue Using the Licensed Product; or (c) terminate this Agreement. This Section states Vound’s entire liability for infringement or other violations of any third party’s proprietary rights.
- Maintenance, Support and Fair Use Policy. No maintenance or support shall be provided under this Agreement. All maintenance and support, including without limitation technical support, user support, training, and upgrades or updates after the first year of a perpetual license, will be provided only by separate agreement with Vound. BY USING OR REQUESTING ANY SUPPORT OR MAINTENANCE SERVICES FROM VOUND, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THE MAINTENANCE AND SUPPORT AGREEMENT (LOCATED AT https://www.vound-software.com/support-policy), INCLUDING WITHOUT LIMITATION THE FAIR USE POLICY FOUND THEREIN, AND AGREE THAT SUCH AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. Under the Maintenance and Support Agreement, maintenance services are included in the License Fee of this Agreement for the first twelve (12) months following payment, and support services for Licensed Product other than Intella P.I. is included in the License Fee of this Agreement for the first thirty (30) days following payment and submission of a support ticket by You. Support for Intella P.I. is only available through the online user form located at http://community.vound-software.com.
- General. This Agreement is between You and Vound relating to the Licensed Product. It supersedes all prior or contemporaneous oral or written communications, proposals, warranties and representations with respect to its subject matter, and following Your acceptance of this Agreement by clicking on the “I Agree” button, will prevail over any conflicting or additional terms of any other communications by or between You and Vound. No modification to this Agreement is binding unless in writing and signed by an authorized representative of each party. A waiver or failure by either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held to be in violation of applicable law, void or unenforceable, then such provision shall be waived to the extent necessary for this Agreement to be otherwise enforceable; however, if deletion of any provision of this Agreement by operation of this Section unreasonably compromises, in Vound's reasonable determination, the rights or liabilities of Vound and/or its licensors, then Vound reserves the right to terminate this Agreement. This Agreement is made under, shall be governed by and construed in accordance with, the laws of the State of Delaware, U.S.A., excluding its choice of law provisions. Courts located in the State of Delaware shall have exclusive jurisdiction over any Action seeking to enforce any provision of, or based upon any right arising out of, this Agreement. You and Vound irrevocably submit to the personal jurisdiction of such courts, waive any objection to venue and consent to service of process by registered mail, return receipt requested, at your address on file with Vound and at the address of Vound in Section 1 above. You may not assign this Agreement, or otherwise transfer any of Your rights or responsibilities under this Agreement, without the prior written consent of Vound. Section 5 (Proprietary Rights), Section 6 (Confidentiality), Section 10 (Disclaimers), Section 11 (Limitation of Damages), Section 12 (Indemnification), Section 15 (General) and Section 16 (Export/Import Control) shall survive termination or expiration of this Agreement.
- Export/Import Control. You represent and warrant that the Licensed Product shall not be used for any nuclear, chemical/biological warfare, missile end-use or training or military purposes related thereto. You acknowledge that the Licensed Product and all related technical information and Documentation are subject to export controls under the U.S. Export Administration Regulation. You acknowledge that You will (i) comply strictly with all legal requirements established under these controls; (ii) cooperate fully with Vound in any official or unofficial audit or inspection that relates to these controls; and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly, any Licensed Product or related technical information or Documentation or direct products thereof to any country so restricted by the U.S. Export Administration Regulations, as modified from time to time, or to any national or resident thereof, unless You have obtained the prior written authorization of Vound and the U.S. Commerce Department and any relevant local governmental authority. You agree that Vound shall have no liability for the failure to obtain a U.S. export license to export the Licensed Product in violation of this Section.
- Changes to this agreement. All quoted prices and invoices are based on the acceptance of the terms of this Agreement. Vound will only consider changes to this Agreement (a “Change Request”) upon payment by You of a minimum consultation fee of US$8,000. Such consultation fee must be paid in advance of or together with such Change Request and prior to any discussion. Should legal consultation fees incurred by Vound in connection with a Change Request be more than US$8,000, Vound will invoice to You and you agree to pay to Vound such additional amount. Please contact Vound sales for payment details in advance of making a change request. For purchases of over US$250,000 this fee may be waived.