This End-User License Agreement (“EULA”) is a legal agreement between you (“Licensee”) individually and, to the extent you are an authorized representative of your company, on behalf of your company, and Activu Corporation (“ACTIVU”), with an address at 301 Round Hill Drive, Rockaway, NJ 07866, for the ACTIVU software that accompanies this EULA (“Software”). BY INSTALLING, COPYING, OR USING THE SOFTWARE YOU ARE DEMONSTRATING YOUR AND, AS APPLICABLE, YOUR COMPANY’S AGREEMENT TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS EULA, NEITHER YOU NOR YOUR COMPANY IS AUTHORIZED TO INSTALL, COPY, OR USE THE SOFTWARE.
This EULA shall be construed together with such other Contract Documents that ACTIVU and Licensee adopt to reflect their entire understanding.
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article 1.0 Definitions
1.1 “ACTIVU” means Activu Corporation, its affiliates, successors and assigns. “Licensee” means the party and such of its affiliates that are expressly authorized to use the Licensed Program pursuant to the Contract Documents.
1.2 “Code” means the computer programming code of the Licensed Program, Modifications and Enhancements, including, without limitation, Source Code and Object Code. “Source Code” means the human-readable form of the computer programming code of the Licensed Program, Modifications and Enhancements, including all comments and any procedural code such as job control language statements. “Object Code” means the machine-readable form of the computer programming code of the Licensed Program, Modifications and Enhancements.
1.3 “Contract Documents” means (as the context requires) this EULA, and any other agreements and/or statements of work that are agreed to in writing between ACTIVU and Licensee in connection with the Software and any modifications, upgrades and/or enhancements thereto, and any services and/or maintenance to be performed by ACTIVU for Licensee in connection therewith.
1.4 “Documentation” means any and all text material that describes the design, functions, operation and use of the Software, including, without limitation, Technical Documentation and User Documentation. “Technical Documentation” means any and all text material that describes the design and function of the Software, including, without limitation, program specifications, release notes, functional requirements, logic manuals, flow charts, schematics, statements of principles of operations, and architecture standards describing the data flows, data structure and control logic of the Software. “User Documentation” means any and all text material that describes the functions, operation, and use of the Software, including, without limitation, installation guides, user manuals, training materials, release notes, and working papers, and that is reasonably necessary for the operation of the Software by Licensee as contemplated hereunder.
1.5 “Intellectual Property” means any and all intellectual property associated with the Licensed Program, modifications and enhancements, including, without limitation, designs, formulas, procedures, methods, apparatus, ideas, creations, improvements, works of authorship, materials, processes, inventions, techniques, data, know-how, show-how, algorithms, programs, subroutines, tools, patents and patentable materials, copyrights and copyrightable materials, and trade secrets.
1.6 “Licensed Program” or “Software” means the suite of computer software program(s) that is governed by this EULA and the other Contract Documents, including some or all and collectively, the Activu™ System Manager, the Activu™ Display Server, the Activu™ Device Manager, the Activu™ Multiplexer, the Activu™ Access Point, the Activu™ Advanced Agent, the Activu™ Interface Server, the Activu™ Mobility Access Server, the Activu™ Mobility App, the Activu™ Monitoring Server, the Activu™ Decoder Server, the Activu™ Transfer Server, the Activu™ Recording Server and any other ACTIVU software that is installed, copied, or otherwise used by Licensee pursuant to the terms and conditions of this EULA.
Article 2.0 License
2.1 Grant. Subject to the payment of the fee required and subject to the terms and conditions of this license agreement, ACTIVU hereby grants to Licensee a non-assignable, non-transferable, non-sublicensable, non-exclusive, revocable license to use and operate the Software for its ordinary, internal, business purposes only. Any license created by this document is further subject to limitations contained in the Contract Documents. Additionally, the Software may be used only in conjunction with the video wall system with which it has been delivered to Licensee. The Software is licensed, not sold, to Licensee for use only upon the terms of this EULA, and ACTIVU and/or its suppliers and/or licensors reserve all rights not expressly granted to Licensee. Licensee owns the media on which the Software is recorded, but ACTIVU and/or its suppliers and/or licensors retain ownership of the Software itself.
2.2 Proprietary Rights. All software and documentation are licensed and not sold. Title, ownership and Intellectual Property rights in the Software shall remain solely in ACTIVU or such other third party from whom ACTIVU derives its rights. Licensee agrees that it will not take any action to jeopardize, limit or interfere in any manner with ACTIVU’s or any third party’s superior rights.
2.3 Restrictions. Except as otherwise expressly permitted in the Contract Documents, Licensee may not: (a) modify or create any derivative works of any Software or Documentation, including translation or localization (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the Source Code for the Software; (c) export, redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to the Software; (d) copy the Software and Documentation except for one copy for backup purposes only, which copy shall contain all the notices regarding proprietary rights that were contained in the Software and Documentation originally delivered to Licensee); (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (f) modify any header files or class libraries in any Software; (g) create or alter tables or reports relating to the database portion of the Software; (h) publish any results of benchmark tests run on any Software to a third party without ACTIVU’s prior written consent; (i) use the database provided for use with any Software except in conjunction with the relevant Software; or (j) use any Software on a system with more CPUs than the number licensed, by more Users than have been licensed, or on more computers than the number licensed, as applicable.
2.4 ACTIVU Right to Work Product. All Intellectual Property, in all media and forms of expression and communications now known or later developed, and any derivatives or improvements thereto shall at all times remain the exclusive property of ACTIVU or such other third party from whom ACTIVU derives its rights, regardless of whether Licensee, its employees or agents may have contributed to the conception, joined in its development or have paid ACTIVU for the development or its use. Licensee shall execute and deliver such instruments of transfer and other documents to effect, complete and confirm such assignment and further agrees to take all appropriate steps to secure for ACTIVU the rights and benefits of such Intellectual Property.
Aritcle 3.0 Delivery
3.1 Initial Deliverables. ACTIVU shall deliver to Licensee (directly or through an authorized reseller) the following (“Initial Deliverables”) as set forth in the Contract Documents: One (1) executable copy of the Object Code; and One (1) full copy of the User Documentation (magnetic media). The Software and Documentation shall be deemed accepted by Licensee upon receipt.
3.2 Support. This License does not obligate ACTIVU to provide maintenance and/or support on any Software. Support services may be available under separate agreement.
Article 4.0 Confidentiality
4.1 Treatment of ACTIVU Confidential Information. Licensee acknowledges and agrees that the terms of this EULA, the Software, Intellectual Property, ACTIVU technology, ACTIVU tools, provisions of the Contract Documents, Software specifications, diagrams, information, data, materials, inventions, products, procedures, designs, product information, the form and format of reports and on-line computer screens, data transmissions, pricing information, financial or other business or technical information disclosed in connection with this EULA and any other information, documentation or material which Licensee should reasonably understand to be confidential or proprietary to ACTIVU or which is identified by ACTIVU using terms such as confidential or proprietary or any similar terms, shall be considered confidential and proprietary information (individually and collectively, “Confidential Information”) of ACTIVU and, except as provided herein, shall not be disclosed by the Licensee to any third party without the prior written consent of ACTIVU. Licensee agrees that: (i) all Confidential Information shall remain the exclusive property of ACTIVU or such other third party from whom ACTIVU derives its rights; (ii) it shall maintain, and shall cause its employees, agents and subcontractors to maintain, the confidentiality and secrecy of the Confidential Information; and, (iii) it shall return or destroy all copies (including electronic copies) of Confidential Information upon request of ACTIVU. Licensee further agrees that Confidential Information may only be disseminated within Licensee’s own business entity to Licensee’s employees on a “need to know” basis solely for purposes of such Licensee’s performance under this EULA. ACTIVU does not grant Licensee any license, by implication or otherwise, to use any Confidential Information, except as expressly provided herein or in the Contract Documents.
4.2 Exceptions. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it is or becomes a part of the public domain through no act or omission on the part of Licensee or its employees. If Licensee is required to disclose Confidential Information pursuant to applicable law or legal process, it shall (i) deliver to ACTIVU prompt prior written notice advising of such requirement, (ii) cooperate with all efforts by ACTIVU to limit such requirement, including, without limitation, efforts by ACTIVU to obtain a protective or similar order, and (iii) only disclose such portion of the Confidential Information legally required to be disclosed after giving effect to any protective or similar order.
4.3 Survival. The provisions of this Article 4.0 shall survive the termination or expiration of this EULA and the Contract Documents.
Article 5.0 Warranties
5.1 Warranty of Performance and Reliability. ACTIVU warrants for Licensee’s benefit alone, that during the greater of (i) ninety (90) days after delivery to Licensee of the Software (including, but not limited to, if embedded in hardware) or (ii) such other period as may be expressly provided in the Contract Documents (the “Warranty Period”): the Software will be in operable condition as described in the documentation provided with the Software, and that the media upon which the Software is furnished will be free from defects in material and workmanship under normal use. ACTIVU does not warrant that the Software will function without error or interruptions.
5.2 Liability for Errors. If, during the Warranty Period, an Error occurs (where “Error” is defined as a problem caused by an incorrect operation of the unmodified computer code in the Software or an incorrect statement or diagram in the Documentation that produces incorrect results, or other problem with the Software which prevents Licensee from using the Software) ACTIVU will use commercially reasonable efforts to correct such Error, provided Licensee furnishes ACTIVU with the following: (a) written notice of the warranty claim, including a description of the Error, such as the operating conditions (including the specific software/hardware configuration) under which the failure occurred, and (b) to the extent feasible, a representative sample of inputs for repeating and analyzing the failure. If ACTIVU is unable, after commercially reasonable efforts (as determined by ACTIVU in its sole discretion), to correct the Error, Licensee’s sole and exclusive remedy shall be termination of this License and a refund of the license fees allocable to the specific nonconforming Software that have been paid by Licensee to ACTIVU hereunder.
5.3 WARRANTY LIMITATIONS. This Article 5.0 sets forth the sole and exclusive remedies for all claims based on an Error in or with the Software and/or Documentation, whether the Error arises before or during the Warranty Period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence) or civil liability, strict liability, or otherwise. The warranties provided herein are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. THE REPRESENTATIONS AND WARRANTIES OF ACTIVU SET FORTH IN THIS EULA ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL ACTIVU OR ANY AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, REPRESENTATIVES, EMPLOYEES OR AGENTS OF SAME BE LIABLE TO LICENSEE FOR ANY DIRECT (EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA), INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS. ACTIVU’S LIABILITY, IF ANY, TO LICENSEE UNDER THIS EULA AND THE CONTRACT DOCUMENTS SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES ALLOCABLE TO THE SOFTWARE PAID TO ACTIVU HEREUNDER BY LICENSEE.
Article 6.0 Termination
6.1 This License is effective until terminated. ACTIVU may terminate the license granted under this EULA immediately if Licensee fails to comply with any of the terms and conditions of this EULA or in the Contract Documents. Upon termination, Licensee shall (a) cease using the Software and Documentation and (b) certify to ACTIVU within thirty (30) days of the termination that Licensee has destroyed or returned to ACTIVU the Software, Documentation and Confidential Information, and all copies thereof.
Article 7.0 Dispute Resolution
7.1 Any dispute between ACTIVU and Licensee arising under this EULA or otherwise regarding the Software shall be heard by a Court of competent jurisdiction located within ACTIVU’s principal place of business, which is currently Rockaway, New Jersey. Licensee consents to such jurisdiction and waives any object to such venue based on it being an inconvenient forum.
7.2 Licensee acknowledges: (a) any use of the Software or Documentation, in a manner inconsistent with this EULA or (b) any other misuse of the Confidential Information of ACTIVU will cause immediate irreparable harm to ACTIVU for which there is no adequate remedy at law. Licensee agrees that ACTIVU shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by Licensee. The parties agree and stipulate that ACTIVU shall be entitled to such injunctive relief without posting of a bond or other security.
7.3 The Court shall award the prevailing party in addition to any other relief awarded or granted, reasonable costs and expenses, including, but not limited to, attorney’s fees.
Article 8.0 Limitation Of Liability
8.1 IN NO EVENT SHALL ACTIVU, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO LICENSEE OR ANY PERSON FOR ANY DIRECT (EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA), INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF CUSTOMERS, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSS INCLUDING COVER AND RELIANCE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE’S TOTAL RECOURSE AND REMEDIES AVAILABLE TO LICENSEE UNDER ANY PROVISION OF THIS EULA OR OTHERWISE SHALL NOT EXCEED THE AMOUNT LICENSEE PAID FOR THE LICENSE OF THE SOFTWARE.
NOTWITHSTANDING ANYTHING IN THIS EULA TO THE CONTRARY, ACTIVU SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR SOFTWARE ALTERED, MODIFIED, OR CONVERTED, OR FOR DAMAGES RESULTING FROM ACCIDENT, ABUSE, OR MISAPPLICATION, OR FOR PROBLEMS DUE TO THE MALFUNCTION OF EQUIPMENT OR SOFTWARE NOT SUPPLIED BY ACTIVU.
THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICE FOR THE SOFTWARE LICENSE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE ALLOCATION OF RISKS AND LIMITATIONS OF LIABILITY AND DAMAGES ARE DELIBERATE AND THE CONSIDERATION WAS DETERMINED ACCORDINGLY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS EULA INURE TO THE BENEFIT OF ACTIVU, ITS AFFILIATES, SUCCESSORS AND ASSIGNS.
Article 9.0 Miscellaneous
9.1 Notices. All notices and other communications which are required or may be given under this EULA shall be in writing and shall be deemed to have been duly given when delivered in person, or transmitted by confirmed facsimile, or three (3) days after being mailed by certified first class mail, postage prepaid, return receipt requested, or one (1) business day after being sent by overnight delivery by Federal Express or UPS, at the addresses set forth above (as the same may be changed from time to time by notice similarly given) or the last known business or residence address of any party.
9.2 Entire Agreement; Amendments. This EULA contains the entire agreement and supersedes all prior agreements and understandings, oral or written, with respect to the subject matter hereof, except the Contract Documents. Every effort shall be made to harmonize this EULA and the Contract Documents. In the event of a conflict between this EULA and the Contract Documents, the Contract Documents shall control. This EULA may not be changed orally, but only in writing, signed by the party against whom any waiver, change, amendment, modification or discharge is sought.
9.3 Governing Law. The Contract Documents shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without regard to conflict of laws principles. The parties disclaim the application of the United Nations Convention on the International Sale of Goods.
9.4 Assignment. Licensee may not assign, transfer, convey or sublicense any or all of its rights under this EULA without ACTIVU’s prior written consent, which consent shall be in ACTIVU’s sole discretion, and any attempt to do so without such consent is null and void.
9.5 Severability. If any provision of this EULA is held to be unenforceable, it will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect.
9.6 Export Restrictions. Licensee agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this EULA. Without limiting the foregoing, Licensee acknowledges that the Software, including Documentation and other technical data, is subject to export controls imposed by the U.S. Export Administration Act of 1979, as amended (the “Act”), and the regulations promulgated hereunder. Licensee will not export or re-export (directly or indirectly) the Software or other technical data therefore without complying with the Act and the regulations thereunder.
9.7 Binding Effect; Benefits. This EULA shall inure to the benefit of, and shall be binding upon, the parties hereto, affiliates and their representatives, successors and assigns, including any entity with which either party may merge or consolidate or to which it may transfer all or substantially all of its assets.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.