End-User License Agreement

IMPORTANT- READ CAREFULLY

THIS END-USER LICENSE AGREEMENT (THE AGREEMENT) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR SINGLE ENTITY) (HEREAFTER REFERRED TO AS CUSTOMER) AND VERSAMETRICS LLC, A NORTH CAROLINA LIMITED LIABILITY COMPANY (HEREAFTER REFERRED TO AS VERSAMETRICS) FOR THE USE OF THE SOFTWARE AND RELATED DOCUMENTATION (THE SOFTWARE) BEING LICENSED TO CUSTOMER BY VERSAMETRICS.

BY CLICKING THE I ACCEPT BUTTON (OR ITS EQUIVALENT), INSTALLING, ACCESSING, RUNNING, OR OTHERWISE USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALSO THE TERMS OF THE TERMS AND CONDITIONS OF PURCHASE (LOCATED HERE). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT AND/OR DOES NOT CLICK THE I ACCEPT BUTTON, CUSTOMER IS NOT AUTHORIZED TO INSTALL, ACCESS OR USE THE SOFTWARE AND SHOULD IMMEDIATELY DISCONTINUE USE OF THE SAME.

Customer acknowledges and agrees that the Software is intended for use with Versametrics' products and devices (Products) which may be purchased separately. Versametrics shall have no liability for any use of the Software with any products or services other than the Products, and Customer understands that the use of the Products may be limited if Customer has not purchased a license for the Software. All licenses are on a per device basis and each Product is subject to a separate license. If Customer has purchased, licensed or downloaded the Software, Customer understands and agrees that its use of the Software shall be governed by this Agreement and the Versametrics Terms and Conditions of Purchase. Customer should only acquire and download the Software from Versametrics or its authorized partners, and Versametrics shall have no liability or responsibility for any software provided by any other third party.

LICENSE

  1. Grant of License. Versametrics hereby grants to Customer a nonexclusive, non-sublicensable, nontransferable license to access and use the Software with the Products and solely for Customer's internal business purposes, according to the terms and conditions of this Agreement. Except for the license expressly granted herein, no right, title, or interest in the Software is transferred to Customer by this Agreement.
  2. Rights and Limitations.
    1. Customer agrees to solely use the Software for its 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 (collectively the Authorized Users, each an Authorized User). Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Software in any way; (ii) make copies (other than for installation purposes as permitted herein), download, modify or make derivative works based upon the Software; (iii) reverse engineer, decompile, disassemble, or reconfigure the Software; (iv) access the Software in order to build a competitive product or service; (v) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (vi) intentionally interfere with or disrupt the integrity or performance of the Software or the data contained therein.
    2. Access to the Software is being provided to Customer solely for the internal use of Customer and its Authorized Users. A breach by any Authorized User of any provision of this Agreement will constitute a breach hereof by Customer. Customer assumes full responsibility for any and all use of the Software by all Authorized Users. Customer acknowledges that its use of the Software is licensed on a per device basis. Customer shall not use the Software with more than the number of devices for which it has acquired a license and agrees to pay for any additional licenses required to reflect the number of devices with which the Software is used.
  3. Payments. Customer agrees to pay all fees set forth in the applicable order form provided to Customer in connection with its license of the Software (whether provided electronically or on paper) and activate any device(s). All fees due under this Agreement are non-cancelable and the sums paid are nonrefundable. Unless otherwise stated in the order form, all fees shall be due in advance on a monthly basis. Customer hereby authorizes Versametrics to charge the credit card, debit card or bank account or other electronic payment provider provided by Customer to Versametrics in connection with this Agreement for the fees due under the Agreement. Customer warrants that the account information is accurate and current and that the account has sufficient funds to satisfy the fees incurred. Customer agrees to notify Versametrics of any changes in its payment information and to be responsible for any bank or credit card fees, penalties are charges resulting from the insufficiency of available funds. Amounts not paid within such time, including by failure of Customer to maintain accurate and correct payment information, shall be subject to interest equal to 1.5% percent per month or the maximum legal rate, whichever is less. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law for the right to access the Software.
  4. Maintenance; Updates. Versametrics 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. Customer acknowledges that such updates may change or modify certain functions or features of the Software. Versametrics shall not be liable to Customer for any specific changes to the features or functionality of the Software and Customer's exclusive recourse if it is not satisfied with any update or improvement is to stop using the Software. Nothing herein shall obligate Versametrics to provide any maintenance or support for the Software and nothing herein shall be interpreted as granting Customer a right to receive any upgrades, patches, enhancements, bug fixes, new versions or new releases of the Software. Versametrics reserves the right to provide new versions of the Software and/or additional functionality for additional or increased fees. Customer shall be solely responsible for implementation of any such updates.
  5. Intellectual Property. Customer acknowledges and agrees that the Software is being licensed to Customer, not sold, and that other than the limited license granted herein, Customer shall have no right, title or interest in or to the Software. As between Versametrics and Customer, all intellectual property rights, including without limitation, any patent, trademark, trade secret and copyrights in and to the Software, are owned by, and shall remain with Versametrics.
  6. Warranty/Limitation of Liability.
    1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE AND ANY UPDATES, MODIFICATIONS, OR IMPROVEMENTS TO THE SOFTWARE PROVIDED BY VERSAMETRICS TO CUSTOMER ARE PROVIDED AS IS AND AS AVAILABLE. ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS, 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 VERSAMETRICS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SOFTWARE OR THAT THE SOFTWARE WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, OR THAT THE SOFTWARE'S FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS.
    2. Limitation of Liability. IN NO EVENT WILL VERSAMETRICS BE LIABLE FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA OR PROPERTY DAMAGE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING OUT OF CUSTOMER'S ORDER OR USE OF THE PRODUCTS, SOFTWARE OR SERVICES EVEN IF VERSAMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE IS BEING PROVIDED AS A TOOL TO AID CUSTOMER BUT CUSTOMER REMAINS RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL RESULTS OF THE SOFTWARE AND FOR HOW CUSTOMER ELECTS TO USE SUCH RESULTS. IN NO EVENT SHALL VERSAMETRICS' TOTAL LIABILITY UNDER ANY CAUSE OF ACTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

    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 CUSTOMER.

  7. Termination.
    1. Unless earlier terminated as provided herein, the term of this Agreement shall commence on the acceptance of this Agreement by Customer and continue for an initial period of twelve (12) months(the Initial Term). Thereafter, this Agreement will automatically renew for additional one-year periods (each a Renewal Term), unless either party provides advance written notice of its intent not to renew at least thirty (30) days prior to the end of the then current Term. As used in this Agreement, both the Initial Term and each Renewal Term may be referred to collectively as the Term.
    2. Either party may terminate this Agreement, effective immediately: (i) upon mutual consent; (ii) in the event the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of written notice from the non-breaching party setting forth the nature of the material breach; or (iii) in the event the other party submits in writing its inability to pay its debts as they become due; makes a general assignment for the benefit of creditors; institutes proceedings to be adjudicated bankrupt; consents to the filing of a petition of bankruptcy against it; seeks reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization.
    3. Upon termination of this Agreement for any reason, Customer shall immediately discontinue all use of the Software. Thereafter, Customer shall have no further right, license or privilege to access, or use the Software. Those portions of the Agreement that must survive termination in order to give effect to its essential purpose, will survive termination of this Agreement. Termination or Expiration of this Agreement shall in no event give Customer any right for refund of any Product(s).
  8. Miscellaneous.
    1. Acknowledgement. Accessing, installing or using the Software constitutes acceptance of this Agreement in its entirety. Customer will confirm this acceptance when Customer presses the I Accept button (or equivalent) in the terms and conditions dialog box presented by the Software or associated website during first use. This Agreement and the Terms and Conditions 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. This Agreement may not be amended or superseded unless agreed in writing by both parties.
    2. 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.
    3. 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.
    4. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
    5. Assignment and Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Versametrics' 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.
    6. Choice of Law and 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.
    7. 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.