This End User License Agreement (this “Agreement“), is a binding agreement between IPVideo Corporation (“Licensor”) and you (an individual or entity) licensing (the “Licensee”) the software and/or firmware (“Software”) which accompanies this Agreement and is contained in one or more of Licensor’s product(s) (the “Products”). Licensor Software and Products subject to this Agreement include, but are not limited to, HALO Cloud, HALO Smart Sensor, ViewScan, and AVfusion.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASSACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS AND CONDITIONS. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT USE THE SOFTWARE.
1. License Grant and Scope. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term (hereinafter defined) to use, solely on the Product(s) subject to this Agreement and solely by and through those individuals authorized to use the Software pursuant to the license granted under this Agreement (“Authorized Users”), the Software and all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software (the “Documentation”), solely as set forth in this Agreement and the Documentation and subject to payment of any applicable license fees (the “License”). For Software that requires installation on a Licensee computer (as expressly stated in the Documentation), including but not limited to ViewScan and AVfusion, the License grants Licensee the additional right, exercisable solely by and through Licensee’s Authorized Users and solely in support of its use of the Software in accordance with the License, to: (a) install in accordance with the Documentation one (1) copy of the Software on one (1) computer owned or leased, and controlled by, Licensee, and (b) use and run the Software as properly installed in accordance with this Agreement and the Documentation. All permitted Documentation copies made by Licensee: (i) will be Licensor’s exclusive property; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights (hereinafter defined) notices contained in the original.
2. Third-Party Materials. The Software includes software, content, or other materials, that are owned by individuals, corporations, limited liability companies, governmental authorities or other entities (each, a “Person”) other than Licensor and are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement, including but not limited to “open source” or “free software” licenses (“Third-Party Licenses”). A list of all materials included in the Software and provided under Third-Party Licenses can be found for the Product(s) at www.ipvideocorp.com/third-party-software-usage-agreement, and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly: (a) use (including make any copies of) the Software or Documentation beyond the scope of the License; (b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation; (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (g) except as expressly set forth in this Agreement, copy the Software or Documentation, in whole or in part; (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, software as a service, cloud, or other technology or service; (i) use the Software or Documentation in violation of any law, regulation, or rule; or (j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
6. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the License granted hereunder and subject to all terms and conditions in this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and Documentation and any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (collectively, “Intellectual Property Rights”) arising out of or relating to the Software or Documentation. Licensee shall safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software or Documentation and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
7. Products and Software Limitations. Licensee acknowledges that the Products and Software: (a) are not certified for any emergency response, and (b) are not a third-party monitored emergency notification system. Licensee further acknowledges that Licensor does not monitor emergency notifications and will not dispatch emergency authorities to any location if an emergency occurs. Licensee further acknowledges that Licensor’s Products and Software are not a lifesaving solution for people at risk and are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
8. Assumption of Risk. IN USING THE SOFTWARE OR PRODUCTS, INCLUDING BUT NOT LIMITED TO WHEN RESPONDING TO THIRD-PARTY GENERATED EVENTS, THERE EXISTS THE POSSIBILITY OF RISK OR SERIOUS INJURY. LICENSEE ACKNOWLEDGES AND ACCEPTS: (I) THE INHERENT RISKS IN USING THE SOFTWARE OR PRODUCTS; (II) THAT SUCH RISKS MAY BE SIGNIFICANT, INCLUDING BUT NOT LIMITED TO BODILY INJURY, PERMANENT DISABILITY, PARALYSIS, AND DEATH; AND (III) THAT SUCH RISKS MAY BE CAUSED BY, ARISE OUT OF, OR BE IN CONNECTION WITH LICENSEE’S ACTIONS OR INACTIONS, THE ACTIONS OR INACTIONS OF OTHERS, THE CONDITION OR OPERATION (OR FAILURE TO OPERATE) OF THE SOFTWARE OR PRODUCTS, OR THE NEGLIGENCE OF ANY PARTY. LICENSEE KNOWINGLY AND FREELY ASSUMES ALL SUCH RISKS (KNOWN AND UNKNOWN, FORESEEABLE AND UNFORESEEABLE) AND TAKES FULL RESPONSIBILITY FOR ITS USE OF THE SOFTWARE AND PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY LOSS, DAMAGE, OR INJURY SUSTAINED OR CAUSED BY USING THE SOFTWARE AND PRODUCTS. LICENSEE ACKNOWLEDGES AND ACCEPTS THE INHERENT RISKS OF RECEIVING ALERTS OF CRIMINAL ACTIVITY OR EMERGENCIES REPORTED BY THIRD PARTIES (“EVENTS”), RESPONDING OR NOT RESPONDING TO EVENTS, AND THE INHERENT RISKS IN RELYING ON OR OTHERWISE BELIEVING EVENTS, INCLUDING BUT NOT LIMITED TO THE POSSIBILITY THAT: (A) AN EVENT IS FALSE, INACCURATE, OR PRODUCED BY MISTAKE, ERROR OR BAD FAITH; AND (B) LICENSEE WILL BE HELD LIABLE FOR ACTIONS OR INACTIONS IN RESPONDING TO AN EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENTLY CONTRIBUTING TO LICENSEE’S INJURY OR OTHERS’ INJURY.
9. Export Regulation. The Software and Documentation may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the U.S.
10. U.S. Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Licensee is the U.S. Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
11. Term and Termination. This Agreement and the License granted hereunder shall remain in effect for the term set forth on any applicable order form for a Product containing the Software or until earlier terminated as set forth herein (the “Term”). Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after Licensor provides written notice thereof. Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. Upon expiration or earlier termination of this Agreement, the License granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
12. Limited Warranty.
(a) Licensor warrants that, for thirty (30) days following Licensee’s licensing of the Software or the purchase date set forth in any applicable order form for a Product containing the Software, whichever is earlier, (i) any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and (ii) the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. The foregoing warranties shall not apply and will become null and void if Licensee breaches any material provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement: (a) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation; (b) modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or (c) misuses the Software, including any use of the Software other than as specified in the Documentation.
(b) If, during the warranty period specified in Section 12(a), any Software covered by the warranty fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 12(a), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or (ii) refund the License fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date identified in Section 12(a), and not from Licensee’s receipt of the repair or replacement. The remedies in this Section 12 are Licensee’s sole remedies and Licensor’s sole liability under this Agreement.
(c) EXCEPT FOR THE LIMITED WARRANTY IN SECTION 12, THE SOFTWARE, DOCUMENTATION AND PRODUCTS ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS AND AGENTS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE, DOCUMENTATION OR PRODUCTS WILL MEET LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEMS, PRODUCTS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS AND AGENTS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR PRODUCTS; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS FROM SYSTEM FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY; OR SECURITY BREACHES; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’, SERVICE PROVIDERS’ AND AGENTS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR UNDER THIS AGREEMENT FOR THE SOFTWARE, DOCUMENTATION OR PRODUCTS SUBJECT TO THE CLAIM.
(c) THE LIMITATIONS IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF LICENSEE’S REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
14. Indemnification. Licensee agrees to indemnify, defend and hold harmless Licensor and its affiliates and its and their respective officers, directors, employees, agents, affiliates, licensors, service providers, successors and assigns from and against any and all damages, liabilities, losses, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including but not limited to reasonable attorney’s fees), arising from or relating to: (i) Licensee’s use or misuse of the Software (including but not limited to any content submitted by Licensee’s through the Software), Documentation or Products, or (ii) Licensee’s breach of any representation, warranty or obligation under this Agreement.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Subject to all applicable laws, Licensee is agreeing to give up: (i) its right to litigate any claims that may arise hereunder in court or before a jury; and (ii) its right to consolidate any claim and/or participate in any class action claim that may arise hereunder in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising hereunder which cannot be amicably resolved by Licensor and Licensee shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of one arbitrator sitting in New York County, New York. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of New York. The decision of the arbitrator(s) shall be in writing with written findings of fact and shall be final and binding on the parties. Each party shall bear all of its own costs, including but not limited to attorneys’ fees, actually incurred in connection with any such arbitration proceedings; provided, however, that if Licensor is the prevailing party, then it shall be entitled to reimbursement for its reasonable attorneys’ fees and related costs expended in connection with the arbitration. With respect to any arbitration hereunder, as stated above, Licensee hereby expressly waives any right to consolidate any claim and/or participate in any class-action claim of any kind or nature.
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
(c) All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand; (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications shall be sent to the respective parties at the addresses set forth on any applicable order form for a Product containing the Software or, in the case of Licensee, may also be sent to any contact information provided to Licensor in registering the Software or any Product(s) containing the Software.
(d) This Agreement, together with any documents or policies that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified, or supplemented by a written agreement signed by each party hereto. No waiver by any party of any of provision herein shall be effective unless set forth in writing and signed by the waiving party. Except as set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Questions or Additional Information. If you have questions regarding this EULA, please contact Licensor at https://www.ipvideocorp.com/contact-us/.