This End-User License Agreement (“Agreement”) is between Polyverse Corporation with an address at 10400 NE 4th St, Suite 500, Bellevue WA 98004 (“Polyverse”), and (“Customer” or “you” or “your”) This Agreement contains the legal terms that govern your use of, and access to, the Service.
- GRANT. During the Subscription Period (as set forth in the Product Schedule) and subject to the terms and conditions of this Agreement:
- Software License. Polyverse hereby grants to Licensee a personal, nonexclusive, non-transferable, non-assignable and non-sublicenseable license to use the software identified in the product schedule attached to this Agreement (“Product Schedule”), in binary executable form only, only in accordance with the accompanying technical documentation (“Documentation”) and only as specified in the applicable Product Schedule. Polyverse may offer updates, patches, corrections, and supplements to such Software at its sole discretion (“Updates”). The software, Documentation, and Updates collectively shall be deemed the “Software”. The Software does not include any source code and no license is granted with respect to source code of any kind.
- Subscription Services. Polyverse hereby grants to Licensee a nonexclusive, non-transferable, non-assignable and non-sublicenseable license to access and use the services identified in the Product Schedule (the “Subscription Services”). Use of the Subscription Services shall be limited to the number of nodes (“Nodes”) specified in the Product Schedule. Licensee shall be solely responsible for procuring all required hardware and any third party software required to operate the Subscription Services.
Any unauthorized access to Subscription Services, or other abuse or impermissible activity on Polyverse’s site or in connection with the Subscription Services, may result in immediate suspension or termination of the licenses granted herein. Licensee shall immediately notify Polyverse of any unauthorized use of the Subscription Services in breach of this Agreement or any other known or suspected breach of security.
- Restrictions. The Software and Subscription Services shall collectively be deemed the “Products”. Except as expressly set forth in this Agreement, Licensee shall not (directly or indirectly, in whole or in part): (i) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the Software; (ii) sell, rent, sublicense, distribute, disclose, publish, assign, commercially share (including time share), or otherwise transfer any rights in the Products without Polyverse’s prior written consent; (iii) use the Products for service bureau services including, without limitation, providing third party hosting, or third party application integration or application service provider type services, or for any similar services; (iv) permit any third party application to access the collection of data indexed by the Products, or use the Products to create or populate any other collection (except with Polyverse’s prior written consent); and (vi) cause or permit to be done anything which shall adversely affect Polyverse’s right, title or interest in or to the Products.
Licensee shall use the Products only in compliance with Polyverse’s standard published policies then in effect and with all applicable laws and regulations (including all export laws and regulations). Licensee shall indemnify and hold harmless Polyverse against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any thirty-party claim or action that arises from an alleged violation of the foregoing.
- OWNERSHIP. Title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the Products and any copies thereof, including but not limited to all Updates, enhancements and modifications to the Software, is and will at all times remain the property of Polyverse. Polyverse retains all right, title and interest in and to the Products that are not specifically granted to Licensee hereunder. Licensee shall not remove or obliterate any copyright, trademark or proprietary rights notice of Polyverse from the Products and shall reproduce all such notices on all authorized copies of the Products.
- TERM AND TERMINATION. Except as otherwise stated herein, or unless terminated earlier in accordance with this Section 3, the term of this Agreement shall commence on the Effective Date and continue until the expiration of the Subscription Period set forth in the Product Schedule. This Agreement may be terminated earlier by Polyverse on thirty (30) days written notice to Licensee if Licensee breaches any terms hereunder and such breach is not cured within such thirty (30) day period, unless such breach cannot be cured, in which case this Agreement and all licenses hereunder shall immediately terminate upon notification of termination. Without prejudice to any other rights to which it may be entitled, Polyverse may give notice in writing to Licensee terminating this Agreement with immediate effect if Licensee: (a) becomes insolvent, (b) makes an assignment for the benefit of creditors, (c) files or has filed against it a petition in bankruptcy or seeking reorganization, (d) has a receiver appointed, (e) ceases conducting business in the normal course, or (f) institutes any proceeding for liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, Licensee shall only be in breach if such petition or proceeding has not been dismissed within thirty (30) days. Upon termination, Licensee shall immediately remove and cease to use the Products and shall return to Polyverse or destroy all copies of the Products or any part thereof (in any form or media), and certify in writing to Polyverse that Licensee has complied with the foregoing obligations. Upon termination of this Agreement, all sections of the Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and termination terms.
- SUPPORT. During the Subscription Period, Polyverse shall exercise commercially reasonable efforts to provide Licensee with technical support for the Products via email. Polyverse shall not be liable for any failures or delays arising as a result of Licensee's failure to properly notify Polyverse of any technical failures of the Products.
- DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, POLYVERSE DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE PRODUCTS ARE PROVIDED “AS IS”. POLYVERSE DOES NOT WARRANT THAT THE PRODUCTS OR THE FUNCTIONS CONTAINED THEREIN WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
- LIMITATION OF LIABILITY. IN NO EVENT WILL POLYVERSE BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, AND LOSS OR INACCURACY OF INFORMATION), REGARDLESS OF THE FORM OF ACTION, EVEN IF THE CLAIM WAS REASONABLY FORESEEABLE OR IF POLYVERSE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL POLYVERSE’S AGGREGATE LIABILITY UNDER ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY LICENSEE TO POLYVERSE FOR THE APPLICABLE PRODUCTS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
- CONFIDENTIALITY. Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are confidential or proprietary, or which may be reasonably regarded as the confidential information of the other party (“Confidential Information”). Confidential Information will also include the Software, Documentation, the terms of this Agreement, and any new product information or the results of any benchmark or similar tests on the Products conducted by Licensee or divulged by Licensee to Polyverse. Each party shall treat the other party’s Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove (i) is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; or (vi) is disclosed in response to a valid order of a court or other governmental body.
- FEES. Licensee shall pay Polyverse the fees set forth in the Product Schedule within thirty (30) days from the date of invoice. All fees are exclusive of shipping, taxes, duties and other similar fees, all of which shall be the sole responsibility of Licensee. Licensee agrees to pay for all reasonable costs (including reasonable attorneys’ fees) incurred in collecting past due amounts under this Agreement.
- INTELLECTUAL PROPERTY RIGHTS. Licensee agrees to promptly notify Polyverse of any known or suspected infringement or breach of Polyverse’s proprietary rights. Polyverse shall have the exclusive right to institute infringement or other appropriate legal action against any alleged, prospective or actual infringement of Polyverse’s intellectual and other proprietary rights in the Products, and shall retain all money received from such action. If the Products or the operation of the Products becomes or, in Polyverse’s opinion is likely to become, the subject of a claim that it infringes the rights of any third party, Licensee will permit Polyverse, at Polyverse’s expense, to either: (i) procure the right for Licensee to continue using the Products, or (ii) replace and modify the Products so that it becomes non-infringing; provided that, if neither of the foregoing alternatives is reasonable, Licensee will return the Products to Polyverse and Polyverse will refund the price paid by Licensee, whereupon this Agreement shall terminate immediately. Notwithstanding the foregoing, Polyverse shall not be liable for any such claim that arises as a result of: (a) any modification of the Products by any party other than Polyverse; (b) use of the Products otherwise than in accordance with the Documentation; (c) combination of the Products with hardware or other software, if such claim would have been avoided by not so combining the Products; or (d) use of a superseded release of Software if the infringement would have been avoided by the timely implementation of an Update supplied by Polyverse. THE FOREGOING STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
- GOVERNMENT END USERS. The Software, including the accompanying documentation, are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212 under United States laws, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and accompanying documentation by the United States Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- COLLECTION OF INFORMATION. Polyverse may, directly or indirectly through third parties services, collect and store information regarding Licensee’s navigation or utilization of the Products. Polyverse may use such information for any purpose, including but not limited to: (a) improving the performance of the Products or developing Updates; and (b) verifying Licensee’s compliance with the terms of this Agreement and enforcing Polyverse’s rights, including all intellectual property rights in and to the Products.
- ACCOUNT COMMUNICATIONS. Customer agrees that its and all of its authorized users will accept (and may not opt out of) all electronic communications (email or otherwise) from Polyverse which relate to Customer’s account, including communications on topics regarding billing, maintenance, updates, etc., and which are not solely for marketing or promotional purposes.
- GENERAL. This Agreement together with the Product Schedule, contains the full and complete understanding of the parties as to the subject matter hereof and may not be altered or modified, except by written amendment which expressly refers to this Agreement and which is duly executed by both Polyverse and Licensee.
The parties expressly agree that this Agreement supersedes all prior or contemporaneous proposals and all oral or written understandings, representations, conditions, and other communications between the parties relating to such subject matter. Any and all terms and conditions contained or referenced in a purchase order shall be of no effect.
Licensee shall not transfer or assign this Agreement or any rights or obligations hereunder under operation of law, change of control, or otherwise, without the prior written consent of Polyverse. Any attempted assignment or transfer in violation of the foregoing will be void.
This Agreement will be governed and interpreted in accordance with the laws of the United States and the State of Washington, without giving effect to principles of conflicts of law. Except for the right of Polyverse to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with the Rules. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All notices required under this Agreement shall be in writing and shall be deemed effective: one (1) day after deposit with a commercial overnight carrier, with written verification of actual receipt. All notices must be delivered to the CEO of the other party to the applicable address on the first page hereof or to such other address as the parties may designate in writing.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
The failure of a party to insist on the performance of an obligation hereunder shall not be deemed to be a waiver of such obligation or of any other obligation.
Each party shall be excused from any delay or failure in its performance hereunder caused by any labor dispute, government requirement, act of God, or any other cause beyond its control.