by John Seeds and Karl Phenix
Last Updated 9/4/2018
BEFORE YOU USE THE APPLICATION SUBJECT TO THIS LICENSE, Please read this END USER LICENSE AGREEMENT (“AGREEMENT”) carefully. This is a legal agreement between avtex solutions, llc (“licensor”), and the entity or individual THAT DOWNLOADED OR IS OTHERWISE accessing and USING THE APPLICATION AND THEREBY AGREEING TO this License (“licensee” or “YOU”).
WARNING: THE APPLICATION IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. UNAUTHORIZED REPRODUCTION, DISTRIBUTION OR USE OF THE APPLICATION, OR ANY PORTION OF IT, MAY RESULT IN CIVIL AND CRIMINAL PENALTIES, AND WILL BE PROSECUTED TO THE MAXIMUM EXTENT POSSIBLE UNDER THE LAW. THE APPLICATION IS LICENSED, NOT SOLD.
ACCEPTANCE: BY CLICKING THE ACCEPT BUTTON AND PROVIDING THE INFORMATION REQUESTED TO DOWNLOAD/ACCESS THE APPLICATION, YOU REPRESENT AND AGREE THAT: (i) YOU ARE AT LEAST 18 YEARS OF AGE; (ii) YOU ARE AUTHORIZED TO CONSENT TO THESE TERMS ON BEHALF OF THE LICENSEE; AND (iii) LICENSEE CONSENTS TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU AND LICENSEE DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, NEITHER YOU NOR LICENSEE MAY DOWNLOAD AND/OR ACCESS AND USE THE APPLICATION. You further agree that checking the box and providing the information requested on the web page constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”) and that you have formed, executed, entered into, accepted the terms of and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by you or the Licensee on whose behalf you are acting.
- Grant of License. Subject to the terms and conditions of this Agreement and in consideration of the payment of the License Fee (defined below), Licensor hereby grants Licensee a nonexclusive, nontransferable, limited license, without right to sublicense, to install (if applicable), access and use the application (the “Application”) for the license/subscription term specified in Licensee’s order documents solely for Licensee’s internal business purposes for use by Licensee’s employees and contractors providing services exclusively on behalf of Licensee (“Users”) and no other purpose. In the event Licensor develops and releases a newer version of the Application, Licensee is not entitled to such newer version under this Agreement. This Agreement is for a license of intellectual property, rather than for the sale of goods (even though some tangible items may be provided) and this Agreement shall not be governed by the Uniform Commercial Code.
- Restrictions. The Application is protected by both United States copyright law, international treaty provisions and potentially by other intellectual property rights. Unauthorized copying of the Application is expressly forbidden. Licensee may not (a) distribute copies of the Application to others, including but not limited to, consultants, affiliates, independent contractors, Users or any other third party; (b) sell, loan, rent, lease, lend, transfer, assign or otherwise dispose to anyone else the Application; or (c) modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Application. Licensee shall use the Application only for lawful purposes and in compliance with all applicable laws, including privacy and data collection laws, and in compliance with the Documentation (as defined below). Licensee may be held legally responsible for any copyright infringement that is caused or incurred by Licensee’s failure to abide by the terms of this Agreement. Except as expressly provided in this Agreement or by local law, Licensee may not otherwise make copies of the Application, including any written materials accompanying the Application (the “Documentation”). Licensee may copy such Documentation for its internal use only. IF LICENSEE TRANSFERS POSSESSION OF ANY COPY OF THE APPLICATION, DOCUMENTATION OR RELATED MATERIAL TO ANOTHER PARTY IN VIOLATION OF THIS AGREEMENT, THIS LICENSE IS AUTOMATICALLY TERMINATED.
- Ownership of Application. All title and intellectual property rights in and to the Application (including but not limited to any images, photographs, animations, video, audio, music, text and “applets”, incorporated into the Application), the Documentation and any copies of the Application or Documentation are owned by Licensor. Licensee agrees that no title to the Application or Documentation is transferred to it, and that all rights not expressly granted to Licensee hereunder are reserved by Licensor.
- Term. This Agreement will continue in full force and effect from the date hereof until terminated in accordance with Section 8.
- License Fee. Licensee will pay Licensor or its permitted reseller (if required by Licensor) the license fees (the “License Fee”) set forth in Licensee’s order documents. Unless otherwise indicated in Licensee’s order documents, Licensee shall pay the License Fees prior to installation of or access to the Application.
- Use Audit. Licensor may, upon fifteen (15) days’ advance notice and at its expense, conduct an audit, during Licensee’s normal business hours, of Licensee’s use of the Application and Documentation to verify compliance with this Agreement. Licensee shall provide Licensor or an authorized representative with access to records, hardware and employees in order to perform the audit.
- Assignment/Sublicense. Neither this Agreement nor any rights or obligations under this Agreement, in whole or in part, shall be sublicensed, assigned or otherwise transferred by Licensee and any attempt to do so will be null and void.
- Termination. Licensee may terminate this license at any time by uninstalling or no longer accessing the Application and returning or destroying all Documentation and any related material together with all copies, modifications and merged portions in any form. Licensor may suspend access to the Application or terminate this Agreement and Licensee’s license to the Application in the event Licensee breaches any term of this Agreement, which breach remains uncured for a period of ten (10) days following written notice of such breach to Licensee. Licensee will not be entitled to any refund of License Fees upon any termination of this Agreement or suspension of access to the Application. Licensee agrees upon such termination to uninstall or stop accessing the Application and to destroy the Documentation together with all copies, modifications and merged portions in any form, and to provide Licensor with written certification of destruction and nonuse. Sections 2, 3, 5, 7, and 9 – 18 shall survive the expiration or termination of the Agreement and shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (i) NEITHER LICENSOR NOR ITS THIRD PARTY LICENSORS OR RESELLERS SHALL BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE APPLICATION, INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA, LOSS OF REVENUE OR PROFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST LICENSEE BY ANY THIRD PERSON, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST LICENSOR MORE THAN ONE YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE; and (ii) LICENSOR’S LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY LICENSOR UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.
- Indemnification. Licensee agrees to indemnify, defend and hold harmless Licensor, together with its officers, directors, employees, licensors and agents (including Genesys pursuant to Section 12 hereof), against any liability (including reasonable attorneys’ fees) arising out of any claim made against Licensor arising out of or related to Licensee’s or a User’s use of the Application or Documentation in violation of this Agreement including, but not limited to, any claim that Licensee’s or User’s unauthorized use infringes the intellectual property rights (including, but not limited to, patent, trademark and copyright rights) of any third party. Licensee will bear the expense of such defense and pay any damages and attorneys’ fees which are attributable to such claim.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND DOCUMENTATION ARE DELIVERED “AS IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY EITHER LICENSOR OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DISTRIBUTION OR DELIVERY OF THE APPLICATION, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE RELIABILITY, ACCURACY, COMPLETENESS, SECURITY OR SUITABILITY OF ANY OF THE MATERIAL CONTAINED WITHIN THE APPLICATION OR DOCUMENTATION. LICENSOR MAKES NO WARRANTY THAT THE APPLICATION WILL BE UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, COMPATIBLE WITH ANY HARDWARE OR SYSTEMS SOFTWARE CONFIGURATION, OR WILL MEET YOUR REQUIREMENTS. THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- Genesys. If Licensor offers the Application through the AppFoundry Marketplace or otherwise directly or indirectly through Genesys Telecommunications Laboratories, Inc. or its affiliates (collectively, “Genesys”), Licensee acknowledges and agrees that Licensee’s only recourse for a warranty claim shall be through Licensor and Genesys has no liability to Licensee relating to the Application, the Documentation or the use thereof. Licensee agrees that Genesys is an intended third party beneficiary of the indemnity contained in Section 10 hereof as a distributor or reseller of the Application.
- Confidentiality. Licensee acknowledges that Confidential Information (as hereinafter defined) is a valuable, special, and unique asset of Licensor and agrees that Licensee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any Confidential Information for any purpose other than disclosure to Licensee’s authorized employees and agents who are bound to maintain the confidentiality of the Confidential Information. Licensee shall notify Licensor in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Licensee shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer, or use. Licensee shall not duplicate any material containing Confidential Information except as authorized by Licensor in writing. Licensee shall return all originals and copies of materials containing Confidential Information upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” means any and all of Licensor’s trade secrets, confidential and proprietary information and all other information and data of Licensor that is not generally known to the public or other third parties who could derive economic value from its use or disclosure, including, but not limited to, the Application. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
- Integration. This Agreement and any terms and conditions of use for the website through which the Application is downloaded/accessed (a) constitute the entire agreement between Licensor and Licensee relating to the Application; (b) supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter; and (c) prevail over any conflicting or additional terms of any order, acknowledgement, or similar communication between parties during the term of this Agreement. No modification to this Agreement will be binding, unless in writing and signed by a duly authorized representative of the parties.
- Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
- Governing Law; Venue. This Agreement will be governed by the laws of the State of Minnesota without regard to conflicts of laws principles. Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement may be brought only in the courts of the State of Minnesota, Hennepin County, or the federal courts located in Hennepin County. The parties hereby consent to such jurisdiction and venue.
- Miscellaneous. The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach of this Agreement. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement will not be affected and each such term or provision of this Agreement shall continue to be valid, binding and enforceable to the fullest extent permitted by law, except to the extent that such unenforceability may deprive a party of the benefits reasonably expected by that party as an inducement to enter into or to renew this Agreement. Neither party shall be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, labor, fire, flood, epidemic, restrictions, strikes, and/or freight embargoes.
BY CLICKING THE ACCEPT BUTTON AND PROVIDING THE INFORMATION REQUESTED TO DOWNLOAD/ACCESS THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND THAT LICENSEE AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.