BY USING THE VORSUTUS PRODUCTS (THE “SOFTWARE”) OR OTHERWISE ACKNOWLEDGING YOUR ACCEPTANCE OF THIS AGREEMENT, FOR EXAMPLE, BY DOWNLOADING THE SOFTWARE, CLICKING AN “ACCEPT” BUTTON OR SIGNING A QUOTATION REFERRING TO THIS AGREEMENT, YOU (AS AN INDIVIDUAL, COMPANY, BUSINESS, CORPORATION, OR OTHER ENTITY, “LICENSEE”), ACCEPT AND AGREE TO THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, CORPORATION, OR OTHER ENTITY, YOU AND THE APPLICABLE COMPANY, BUSINESS, CORPORATION, OR OTHER ENTITY EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” AND “LICENSEE” WILL REFER TO SUCH ENTITY. YOU AGREE TO BE BOUND BY ALL OF THESE TERMS (INCLUDING THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY SECTIONS SET FORTH BELOW) TO THE EXCLUSION OF ANY OTHER RIGHTS AND OBLIGATIONS, SUCH AS ANY RIGHTS, OBLIGATIONS OR OTHER TERMS LISTED ON A PURCHASE ORDER OR THE LIKE THAT LICENSEE MAY PROVIDE VORSUTUS OR ANY OTHER 3RD PARTY NOT IN THE DOMINION AND CONTROL OF VORSUTUS AND LICENSEE HEREBY AGREES THAT ANY SUCH RIGHTS, OBLIGATIONS OR OTHER TERMS LISTED ON SUCH A PURCHASE ORDER OR THE LIKE ARE HEREBY NULL AND VOID. YOU ACKNOWLEDGE THAT YOUR AGREEMENT TO THIS AGREEMENT IS A CONDITION OF YOUR ACCESS TO THE VORSUTUS SOFTWARE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE VORSUTUS SOFTWARE.
1. License
1.1. Under this Agreement the Licensor grants to the Licensee a non-exclusive and non-transferable license (the “License”) to use VORSUTUS PRODUCTS (the “Software”).
1.2. “Software” includes the executable computer programs and any related printed, electronic and online documentation and any other files that may accompany the product.
1.3. Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Licensor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
1.4. The Software may be loaded onto no more than one computer. A single copy may be made for backup purposes only.
1.5. The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
1.6. The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
1.7. Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
2. License Fee
2.1. The license fee for this Agreement will consist of the original purchase price indicated on the Order Form.
3. Limitation of Liability
3.1. The Software is provided by the Licensor and accepted by the Licensee “as is”. Liability of the Licensor will be limited to a maximum of the original purchase price of the Software. The Licensor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software. ALL DISCLAIMERS, LIMITATIONS OF WARRANTIES AND DAMAGES, AND CONFIDENTIAL COMMITMENTS SET FORTH IN THESE TERMS OR OTHERWISE EXISTING AT LAW (1) ARE OF THE ESSENCE OF THE AGREEMENT OF THE PARTIES, AND (2) SURVIVE ANY TERMINATION, EXPIRATION OR RESCISSION OF THESE TERMS.
3.2. The Licensor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.
3.3. The Licensor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
4. Warrants and Representations
4.1. The Licensor warrants and represents that it is the copyright holder of the Software. The Licensor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright or applicable statute.
4.2. Licensee represents and warrants that (i) Licensee has the ability and authority to enter into and perform its obligations under this Agreement and the Order Form and (ii) Licensee will not, and will not allow others, to use the Software in a manner that is (i) restricted under the License above, or (ii) prohibited by law or regulation.
4.3. The Licensor represents and warrants that the Software provided will substantially conform to its description provided in any Order Form.
5. DISCLAIMER OF WARRANTIES
5.1. Although LICENSOR has attempted to provide accurate information with regard to the Software, LICENSOR assumes no responsibility for the accuracy or inaccuracy of any information provided. Any mention of non-LICENSOR products or services is for information purposes only and constitutes neither an endorsement nor a recommendation. Use of the Software is at Licensee’s own risk. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF LICENSOR AS SET FORTH HEREIN.
6. INDEMNIFICATION
6.1. Licensee is solely responsible for maintaining the confidentiality of its account and password(s) and is also responsible for all activities that occur under its account. Therefore, Licensee hereby agrees to indemnify, defend and hold LICENSOR and its affiliates, employees, officers, directors, owners, resellers, information providers, agents, licensees, licensors (the “Indemnified Parties”) harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any third party demand, claims, action, suit, or loss arising as a result of (a) any breach by Licensee of these terms of use or claims arising from Licensee’s account; (b) any fraud or manipulation by Licensee; (c) a third-party claim, action or allegation of infringement based on information, data, files or other content submitted by Licensee; or (d) any claims of credit card fraud based on any information released by Licensee. Licensee agrees to use best efforts to cooperate with Licensor in the defense of any demand, claim, action or suit. Licensor reserves the right to assume the exclusive defense of any matter subject to indemnification by Licensee at Licensor’s own expense.
7. Acceptance
7.1. All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee (“Acceptance”) upon execution of this Agreement.
7.2. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of Licensor and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below in Section 13.
8. User Support
8.1. The Licensee will be entitled to Phone / Email / Remote Support available 9:00 AM to 5:00 PM Pacific – Weekdays Only, for the duration of license period at no additional cost.
8.2. The Licensee will be entitled to maintenance upgrades and bug fixes, at no additional cost, for the duration of license period at no additional cost.
9. Term
9.1. The term of this Agreement will begin on Acceptance and will continue for the duration of the subscription purchased and may be purchased in multiple increments (the “Term”). At the end of the Term, Licensee shall no longer have the right to use the Software and must destroy all copies of the Software in its possession. The Licensor will terminate the license validation service following the end of the Term (or earlier in accordance with Section 22), which will disable the Software capability (unless a new Order Form is executed and new license terms established and accepted).
10. Termination
10.1. This Agreement will terminate at the end of the Term, unless earlier terminated by Licensor as set forth in Section 10.2 below. On termination of this Agreement for any reason, the Licensee will promptly destroy the Software or return the Software to the Licensor.
10.2. Licensor may, in its sole discretion, immediately terminate Licensee’s subscription, license and right to use the Software following notice and a five-day cure period if (i) Licensee fails to make timely payments of subscription fees as required for access to its account or Licensee declares bankruptcy, is involved in any bankruptcy proceedings or is otherwise insolvent; (ii) Licensee breaches this Agreement; (iii) Licensor is unable to verify or authenticate any information Licensee provides to Licensor; or (iv) Licensor decides, in its sole discretion, to discontinue offering the Software to its users (in the event of such a discontinuance by Licensor only, Licensee shall be entitled to reimbursement of a pro rata portion of any unused prepaid fees paid hereunder to Licensor). Licensor shall not be liable to Licensee or any third party for termination of the Software license. Upon expiration or termination for any reason, Licensee shall no longer be authorized to use the Software. All disclaimers, limitations of warranties and damages, and confidential commitments set forth in this Agreement or otherwise existing at law shall survive any termination, expiration or rescission of this Agreement.
11. Force Majeure
11.1. The Licensor will be free of liability to the Licensee where the Licensor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Licensor has taken any and all appropriate action to mitigate such an event.
12. Maintenance and Modifications
12.1. The Licensor may from time to time interrupt or otherwise impact Software functionality for routine maintenance or upgrades, upon reasonable notice to Licensee. The Licensor shall make reasonable efforts to give Licensee a minimum of five (5) business days’ advance notification (via phone or email) of such maintenance or upgrade and shall use best efforts to ensure that such maintenance or upgrade shall not interrupt Software functionality to Licensee. In the event of a need for emergency maintenance, the Licensor will make reasonable efforts to notify Licensee and to provide as much notification as is deemed practicable by the Licensor in regards to any downtime or other information pertinent to the affected Software. Each party shall provide the other party (and revise as necessary) a list of contacts for maintenance and escalation purposes.
13. Confidentiality
13.1. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (1) have been known publicly; (2) have been known generally in the industry before communication by the disclosing party to the recipient; (3) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (4) have been known otherwise by the recipient before communication by the disclosing party; or (5) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information or independently developed.
14. Injunctive Relief
14.1. Customer acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will: (1) substantially diminish the value to Licensor of the trade secrets and other proprietary interests that are the subject of this Agreement; (2) render Licensor remedy at law for such unauthorized use, disclosure or transfer inadequate; and (3) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, Licensor shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
15. Governing Law
15.1. The Parties to this Agreement submit to the jurisdiction of the courts of the State of California for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of California.
16. Relationship of Parties
16.1. The performance of Licensor of its duties and obligations under this Agreement shall be that of an independent contractor, and nothing in either agreement shall create or imply an agency relationship between Licensor and Licensee, nor will either agreement be deemed to constitute a joint venture or partnership between the parties. Furthermore, the parties agree that the relationship between Licensor and Licensee is non-exclusive.
17. Assignment
17.1. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted assigns. Neither party may assign this Agreement, assign its rights or delegate its duties hereunder (whether directly or indirectly, in whole or in part, by operation of law or otherwise), without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Licensor may assign this Agreement, without Licensee’s prior written consent in connection with a merger, acquisition, change of control or sale of substantially all of its assets (or any substantially similar transaction). Additionally, Licensor may assign all or any part of the performance of this Agreement to an Affiliate Entity without Licensee’s prior written consent. For the purposes of this section, the term “Affiliate Entity” shall mean any entity that now or in the future controls, is controlled by, or is under common control with Licensor.
18. Severability
18.1. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and the parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties had the stricken provision remained.
19. Miscellaneous
19.1. This Agreement can only be modified in writing signed by both the Licensor and the Licensee.
19.2. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
19.3. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
19.4. This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
19.5. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Licensor’s successors and assigns.
20. Notices. Any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail, return receipt requested, to the Licensor or to Company at the following addresses :
20.1. Licensor: Vorsutus Technologies 2410 Camino Ramon # 111 San Ramon CA 94583
20.2. Licensee: the address set forth on the Order Form or as otherwise provided by Licensee to Licensor from time to time.