End-User License Agreement
IMPORTANT- READ CAREFULLY
THIS END-USER LICENSE AGREEMENT (THE
AGREEMENT) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN
OR SINGLE ENTITY) (HEREAFTER REFERRED TO AS
CUSTOMER) AND VERSAMETRICS LLC, A NORTH CAROLINA
LIMITED LIABILITY COMPANY (HEREAFTER REFERRED TO
VERSAMETRICS) FOR THE USE OF THE SOFTWARE
AND RELATED DOCUMENTATION (THE
BEING LICENSED TO CUSTOMER BY VERSAMETRICS.
BY CLICKING THE
I ACCEPT BUTTON (OR ITS EQUIVALENT), INSTALLING, ACCESSING, RUNNING, OR OTHERWISE
SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALSO THE TERMS OF THE TERMS AND CONDITIONS OF PURCHASE
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.
- 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.
- Rights and Limitations.
- 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,
or consultants under written contract agreeing to be bound by terms at least as protective as this
Agreement (collectively the
Authorized Users, each an
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
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
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.
- 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.
- 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.
- 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.
- 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.
- Warranty/Limitation of Liability.
- 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
THE SOFTWARE OR THAT THE SOFTWARE WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, OR THAT
SOFTWARE'S FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS.
- 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
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
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
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.
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
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
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
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).
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.
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 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.
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.
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.