Interactive Data Visualization, Inc.

END USER LICENSE AGREEMENT

 

This END USER LICENSE AGREEMENT (the “EULA”) is a legal agreement between you (either an individual or a single entity) (collectively “You”) and Interactive Data Visualization, Inc., a South Carolina corporation with offices at 5446 Sunset Boulevard, Suite 201, Lexington, South Carolina 29072 (“IDV”), for the Eye-Sys® software product, which includes computer software (collectively the “Software”) designed to be downloaded to and/or installed on personal computers, workstations, terminals or servers (each a “PC”), and may include associated media, printed materials, and/or “online” or electronic documentation (the “Documentation”) (the Software and the Documentation are sometimes referred to together herein as the “Software Product”).  An amendment or addendum to this EULA may accompany the Software Product.

 

By downloading, installing, running, executing, or otherwise using any portion of the Software Product, You agree to be bound by the terms of this EULA.  If you do not agree to be bound to the terms of this EULA, please do not download, install, RUN, EXECUTE, accept, USE or permit others to download, install, run, execute, ACCEPT, or otherwise use the Software Product.  YOU MAY RETURN THE SOFTWARE PRODUCT TO YOUR PLACE OF PURCHASE Or Cease use of the software and certify In Writing to IDV that you have Destroyed, Erased, deleted or otherwise removed the Software from any and all pcs foR A FULL REFUND WITHIN FIFTEEN (15) DAYS OF MAKING FULL PAYMENT TO IDV FOR A FULL LICENSE TO THE SOFTWARE PRODUCT; PROVIDED, HOWEVER, THat YOU MUST Also DESTROY ALL RESULTS, PROCEEDS and printed documentation GENERATED THROUGH USE OF THE SOFTWARE PRODUCT AND CERTIFY IN WRITING TO IDV THAT ALL SUCH RESULTS, pROCEEDS and printed documentation HAVE BEEN DESTROYED.

 

THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING.  THIS TECHNOLOGY MAY PREVENT USES OF THE SOFTWARE THAT ARE NOT PERMITTED.  THE SOFTWARE ALSO CONTAINS TIMEOUT FEATURES THAT WILL CAUSE THE SOFTWARE OR CERTAIN OF ITS COMPONENTS TO CEASE OPERATIONS AFTER A DESIGNATED PERIOD OF TIME.

 

I.  GRANT OF LICENSE; RESTRICTIONS

A. Limited License.  Subject to the terms and conditions contained in this EULA, IDV hereby grants to You a non-exclusive, non-transferable, and non-sublicenseable (subject to IDV’s right to terminate as set forth herein) license (i) to install the object code version of the Software on one or more PCs; (ii) to use the Software in the manner and for the purpose described in the Documentation in support of a single user if You have acquired a Single User License or use the Software in the manner and for the purpose described in the Documentation in support of up to the licensed number of users if You have acquired a Floating License; (iii) to use the Software on such PCs for the period described in Section I.E herein, subject to any termination or expiration of the EULA hereunder, (iv) to use one copy of the Documentation in connection with Your installation and use of the Software and for the duration of such use hereunder, and (v) make copies of Your Product, with the associated Player, and distribute copies of Your Product with the Player solely for demonstration and viewing and no other productivity or commercial purpose; provided however that (a) the Player may not be distributed or used other than as bundled with the Output File as part of Your Product and (b) You shall make use of the Player by each distribute subject to IDV's form of license agreement, which includes an agreement that no title to, or ownership rights in, the Player are transferred and that Your Product, including the Player, shall not be reverse compiled, reverse engineered or disassembled, and that a right and ability to use the Player shall automatically expire thirty-six hours after Your Product is first executed after creation. You acknowledge and agree that (i) the Player provides You the limited one time ability for a period of thirty-six hours after Your Product is first executed, or any longer period IDV agrees to in writing, for a distribute to view Your Product on the Player, (ii) a time key or other time out feature causes the Player to cease to operate  thirty-six hours after Your Product is first executed, and (iii) You will not circumvent the limited rights to make a Player available for use by a distribute solely for demonstration and viewing for thirty-six hours by utilizing the Software to regenerate Your Product on a new Player.  A Single User License means the right for one user at a time to access and use the Software in accordance with this EULA.  A Floating License means the right for up to the licensed number of users as evidenced in an applicable purchase order or document to concurrently access and use the Software in accordance with this EULA. All users of the Software must be Your employees. A Player means that portion of the Software required in order for Your Product to operate on hardware on which the Software itself is not resident.  Your Product means an Output File which contains the Player, generated by You.  Output File means an output file generated by You using the Software. 

 

B. No Sale.  You acknowledge and agree that this copy of the Software Product has been licensed to You pursuant to the terms and conditions of this EULA and that such copy of the Software Product has not been sold to You.  In addition, You acknowledge that this copy of the Software Product is not subject to the “first sale” doctrine as that term is defined in United States Copyright laws.

 

C. Restrictions.  You agree (i) not to copy, transfer, assign, rent, resell, distribute or use the Software Product other than as expressly authorized in this EULA, (ii) not to remove any copyright notice, trademark notice, and/or other proprietary legend or indication of confidentiality set forth on or contained in the Software Product, (iii) not to use the Software in any manner that violates the laws of the United States or any of its states or territories; and (iv) to refrain from using the Software Product for any purpose other than as expressly authorized in this EULA.  You acknowledge that the Software Product is being provided by IDV only for Your academic, personal, or business-related use on a PC.

D.  No Reverse Engineering.  In addition, You may not, under any circumstances, reverse engineer, decompile, disassemble, hack, port, or otherwise attempt to discover the source code to the Software Product.

 

E.  Evaluation; Mandatory Activation; Fees.  The license rights initially granted under this EULA are good only for an evaluation period beginning on the date You first download the Software Product and for fifteen (15) consecutive days thereafter or other period or additional or extended period as may be specified by IDV in writing, including without limitation by email or other electronic communication, to You in its discretion (the "Evaluation Period").  During the Evaluation Period, the Software Product may contain certain functional limitations, including time keys or other features that cause the Software Product and/or all results and proceeds to cease to operate at the conclusion of the Evaluation Period.  The limitations specific to the Evaluation Period shall end when You  obtain additional license rights to the Software Product by supplying certain written information and paying certain fees (notice of which – including a prescribed manner for supplying such information and fees – shall be provided in writing by IDV upon written request).  Your rights to use the Software Product shall terminate at the end of the Evaluation Period if You do not obtain additional license rights to the Software Product by supplying the required written information and paying the required fees.  During the Evaluation Period, You shall use the Software Product only for evaluation of the Software Product’s applicability, usability, performance and design.  In addition, during the Evaluation Period, You agree to refrain from using the Software Product to perform, support or augment Your business purposes or processes, or in any revenue-generating activity, other than to test the performance of the Software Product in such an environment.

 

F. Confidential and Proprietary Information.  Without the prior written consent of IDV, You shall not at any time, either personally or by means of third parties, make any statement or disclosure or supply any information or material (including, without limitation, the Software Product or any portion thereof) to any third party (other than IDV’s agents at IDV’s direction) or to the public relating to any matter arising hereunder or to the affairs of IDV coming within Your knowledge by reason of this EULA (collectively, the “Confidential and Proprietary Information”).  All Confidential and Proprietary Information is and shall remain the sole property of IDV.  You agree to take all reasonable precautions to prevent any unauthorized disclosure of any Confidential and Proprietary Information and, in any event, shall use Your best efforts to protect the confidentiality of the Software Product.  The terms of this EULA are deemed Confidential and Proprietary Information of IDV.  Upon IDV’s request, or upon the termination or expiration of this EULA, You shall return all Confidential and Proprietary Information (including any copies, summaries, extracts, and other forms thereof) within Your possession or control and within the possession or control of Your employees and representatives.  ALL CONFIDENTIAL AND PROPRIETARY INFORMATION IS PROVIDED ON AN “AS-IS” BASIS.  IDV does not make any representation or warranty as to the accuracy or completeness of the Confidential and Proprietary Information or any component thereof.  No license of any intellectual property rights, or any other rights, is granted by any disclosure of Confidential and Proprietary Information.  In addition to, and not in lieu of the termination provisions set forth in Section III, You agree that, in the event of a threatened or actual breach of a provision of this EULA by You, (a) monetary damages alone will be an inadequate remedy, (b) such breach will cause IDV great, immediate, and irreparable injury and damage, and (c) IDV shall be entitled to seek and obtain, from any court of competent jurisdiction (without the requirement of the posting of a bond, if applicable), immediate injunctive and other equitable relief in addition to, and not in lieu of, any other rights or remedies that IDV may have under applicable laws.

 

G.  Conflicts.  You agree that this EULA shall prevail over any terms and conditions of any purchase order, acknowledgment form, or other instrument.  Any additional, different, or conflicting terms in any purchase order, acknowledgement form, or other instrument shall be deemed objected to by IDV without need of further notice of objection, and shall be of no effect or in any way binding upon IDV.

 

H.  Use of Information.  By installing the Software, you grant permission for IDV to collect and use certain information. You acknowledge that You have reviewed the IDV Privacy Policy, which describes IDV's practices with respect to the collection, use and disclosure of information in connection with Your use of the Software. A copy of the Privacy Policy is available on the www.eyesys.com website. IDV reserves the right to change the provisions of its Privacy Policy from time to time. IDV will post any changes to the Privacy Policy on the www.eye-sys.com website. Your use of the Software following the posting of such changes to the Privacy Policy will constitute Your acceptance of any such changes.

II.  TITLE

IDV reserves all rights not expressly granted to You in this EULA.  You agree that IDV and/or its licensors own all right, title, interest, and intellectual property rights in and to the Software Product and in all patents, trademarks, trade names, inventions, copyrights, know how and trade secrets, and any related applications or extensions, relating to the design, manufacture, operation or service of the Software Product.

 

III. TERMINATION

IDV may terminate this EULA at any time in its sole discretion.  Upon such termination, You shall promptly erase, delete, or otherwise remove the Software from any and all PCs and destroy any copies, summaries, or extracts of the Documentation in Your possession, custody, or control.  You shall certify in writing to IDV that You have done so.  Within a reasonable period of time after such termination, if such termination was solely for IDV’s convenience, IDV shall refund the license fees for the Software Product.  IDV will reduce any such refund on a five (5) -year straight-line depreciation basis.

 

IV. DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE PRODUCT IS PROVIDED “AS IS”, AND IDV DOES NOT MAKE AND SPECIFICALLY DISCLAIMS, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SOFTWARE PRODUCT AND USE OF THE SOFTWARE PRODUCT (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SOFTWARE PRODUCT (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE).  SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT IDV HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE PRODUCT OR THE FUNCTIONALITY THEREOF AND HAS MADE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO.  IN ADDITION, YOU ACKNOWLEDGE THAT YOU HAVE SELECTED THE SOFTWARE PRODUCT, AND THAT IDV MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE FITNESS OF THE SOFTWARE PRODUCT FOR ANY PURPOSE.

 

V. NO SUPPORT

Nothing in this EULA shall obligate IDV to provide any support for the Software Product.  IDV may, but shall be under no obligation to, correct any defects in the Software Product and/or provide updates to You of the Software Product.  You shall promptly report to IDV any defects You find in the Software Product to aid IDV in creating improved revisions of such items.

 

VI. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IDV BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT, ERROR, OR IN CONNECTION WITH YOUR ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE SOFTWARE PRODUCT, EVEN IF IDV OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, AND WITHOUT LIMITING ANY OTHER RIGHTS, REMEDIES, LIMITATIONS, OR RESTRICTIONS IN THIS EULA OR UNDER LAW, IDV WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS EULA UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, AT LAW OR IN EQUITY, FOR ANY AMOUNTS AGGREGATING IN EXCESS OF AMOUNTS PAID TO IT UNDER THIS EULA IN THE TWELVE (12) MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE.

 

VII.  INDEMNITY

You hereby agree to indemnify, protect, defend and hold IDV harmless from and against any and all claims, losses and damages, including without limitation, reasonable attorneys’ and experts’ fees and disbursements, which may at any time be asserted against IDV by any party (a) for Your failure to perform any of the covenants, agreements, terms, provisions or conditions contained in this EULA, (b) by reason of Your use or misuse of the Software Product, (c) relative to the creation of Your Product or the distribution or use of Your Product,  including without limitation that Your Product infringes any intellectual property rights of a third party or (d) resulting from any failure by You to comply with any term or condition of this EULA.  The provisions of this Section VII shall survive the expiration or earlier termination of the EULA.

 

 

VIII.  EXPORT RESTRICTIONS

You acknowledge that the Software Product is of United States origin and subject to United States export jurisdiction.  You agree to comply with all applicable international and national laws that apply to the Software Product and/or to the export of technical data, including the United States Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments.

 

IX. UNITED STATES GOVERNMENT RESTRICTED RIGHTS

The Software and the Documentation are deemed to be “commercial computer software” and  “commercial computer software documentation,” respectively, for purposes of Federal Acquisition Regulations (“FAR”) 12.212 and the Defense FAR Supplement (“DFARS”) 227.7202-1, 227.7202-3, and 227.7202-4, and the restrictions set forth in such regulations, and this EULA shall be deemed to be the license described in such regulations.  Any use, modification, reproduction, release, performance, display or disclosure of the Software or the Documentation by any agency, department or entity of the United States Government (the “Government”) shall be governed solely by the terms of this EULA and is prohibited except to the extent expressly permitted by the terms of this EULA.  The Software and the Documentation are also deemed to be “restricted computer software” for purposes of  FAR 52.227-14(g)(3) (Alternate III (June 1987)) and FAR 52.227-19, which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above.  Any technical data provided that is not covered by the above provisions is deemed to be “technical information related to commercial computer software or commercial computer software documentation” for purposes of FAR 12.212 and the restrictions set forth therein, and is deemed to be “technical data or information related or pertaining to commercial items or processes” developed at private expense for purposes of DFARS 227.7102-1 and 227.7102‑2 and the restrictions set forth therein, and this EULA shall be deemed to be the license described in such regulations.  Any use, modification, reproduction, release, performance, display or disclosure of such technical data by the Government shall be governed solely by the terms of this EULA and is prohibited except to the extent expressly permitted by the terms of this EULA.  Such technical data is also deemed to be “limited rights data” as defined in FAR 52.227-14(a) (Alternate I (June 1987)) and for purposes of FAR 52.227-14(g)(2) (Alternate II (June 1987)), which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above.  Such technical data shall also be deemed to be “technical data” for purposes of DFARS 252.227-7015, which clause is incorporated herein by reference subject to the express restrictions and prohibitions set forth above.  You shall not provide the Software, the Documentation or the technical data to any party, including the Government, unless such third party accepts the same restrictions.  You are responsible for ensuring that the proper notice is given to all such third parties and the Software, the Documentation and the technical data are properly marked with the required legends.

 

X. GOVERNING LAW

This EULA shall be governed by the laws of the State of South Carolina, without reference to conflicts of laws principles.  In addition, this EULA will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), even if that law has been adopted in Texas, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.  Any dispute under this EULA shall be litigated exclusively in the state or federal courts in Columbia, South Carolina.

 

XI. OPEN SOURCE

Certain “open source” software packages have been selected by IDV for inclusion in the Software Product (“Open Source Software”). Open Source Software is not owned by IDV.  Open Source Software is distributed by IDV to You for Your use under the terms of certain open source license agreements, copies of which are included within the Documentation (and are incorporated herein by this reference).  In addition, certain copyright notices for such Open Source Software also are included in the Documentation and the Software Product “About” pages.  You acknowledge that the Open Source Software is third‑party software that has not been manufactured, tested or otherwise approved by IDV.  THE OPEN SOURCE SOFTWARE IS PROVIDED "AS IS," AND IDV DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE OPEN SOURCE SOFTWARE AND/OR USE OF THE OPEN SOURCE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON‑INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE OPEN SOURCE SOFTWARE (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR‑FREE.  Nothing in this EULA shall obligate IDV to provide any support for the Open Source Software.

 

XII.  MISCELLANEOUS

You may not assign this EULA without the prior written consent of IDV.  This EULA is the entire agreement between the parties hereto with respect to the subject matter hereof, and it supersedes all prior agreements or understandings regarding its subject matter.  If any provision of this EULA shall be or become invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not be affected thereby.  No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy.  Any modification or waiver to this EULA must be in writing and signed by both parties.  The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this EULA or any specific term or conditions hereof.  This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns.  Both parties are acting as independent contractors with respect to the activities hereunder.  Nothing in this EULA shall be deemed to create any type of agency, joint venture, or partnership relationship between the parties.  Neither party shall have any right or authority to bind or obligate the other in any manner to any third party.  In the event of any legal proceeding between the parties arising out of or related to this EULA, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.

 

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