CVICONNECT PROFESSIONAL EDITION
TRIAL VERSION SOFTWARE SUBSCRIPTION AGREEMENT
THIS TRIAL VERSION SOFTWARE SUBSCRIPTION AGREEMENT (the “Agreement”) is effective on the date the Customer signs this Agreement (the “Effective Date”), and is made and entered into by and between LifeScience Technologies, LLC, a Kansas limited liability company (“LST”) and the client listed on the signature to this Agreement (“Customer”), each a “Party” and together the “Parties.” This Agreement governs Customer’s use of the LST mobile application for Apple iOS or web-based application (the application and related documentation the “Application”).
BY DOWNLOADING, INSTALLING AND/OR USING THE APPLICATION, CUSTOMER (A) ACKNOWLEDGE THAT CUSTOMER HAS READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENTS THAT CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD AND/OR INSTALL/ AND/OR USE THE APPLICATION.
Definitions. Terms not otherwise defined herein, have the following meaning:
“Authorized Users” means Customer and students or clients of Customer who are authorized by Customer to use the Application. Each Authorized User will have a unique username and login as set forth in more detail below.
“Authorized User Data” means the personal data and information Authorized Users provide to LST and/or input by Customer into the Application for the purpose of creating an account for an Authorized User but excluding the Customer Data and LST Data.
“Customer Data” means all data, information, workflows, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, that Customer creates, installs, uploads to or transfers in or through the Application or content produced in the course of using the Application.
“Intellectual Property Rights” means, including without limitation, rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
“LST Data” means (i) such information or data provided by LST to Customer as part of the Application; (ii) any meta data extracted by LST from Customer's use of the Application to be used to provide the Application; and (iii) any feedback or suggestions from Customer or Authorized Users to LST relating to the Application;
“Virus” means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.
Trial Period; Termination. This Agreement is effective on the Effective Date and will terminate on July 31, 2020, unless ended earlier in accordance with this Agreement (the “Trial Period”). The Trial Period may be extended at the sole discretion of LST. LST will provide access to the Application after Customer executes this Agreement. Customer may use the Application after the Trial Period by agreeing to a new Subscription Agreement. LST will disable the trial accounts and remove any associated content at the end of the Trial Period unless Customer has executed a new Subscription Agreement. This Agreement may be terminated immediately for Cause by LST in its sole discretion for material breaches of this Agreement. Upon the termination of this Agreement, the rights granted to (i) Customer by LST will Terminate immediately and the Customer and all Authorized Users will cease all use of the Application. The obligations related to protection of Confidential Information set forth in this Agreement will survive termination of this Agreement.
Subscription; Additional Terms of Service.
Application License. LST will provide the Application during the Trial Period in accordance with the terms and conditions set out in this Agreement. LST hereby grants to the Customer a non-exclusive, non-transferable, nonassignable, with no right to sublicense, right to permit the Authorized Users to use the Application during the Trial Period solely for Customer's internal uses. All other rights are retained by LST
Unique Authorized Users. Customer agrees that it will not allow any password or login to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User will no longer have any right to access or use the Application. Each Authorized User will keep a secure password for the Application and each Authorized User will keep his or her password confidential.
No Illegal Activity or Viruses. Customer will not access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Data and the Authorized User Data, during the course of its use of the Application that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; or (iii) in a manner that is otherwise illegal or causes damage or injury to any person or property; and LST reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer's access to any material that breaches the provisions of this Section.
Use with Minors. Customer recognizes that the Application may be used while working with minors, and Customer agrees that Customer will obtain all necessary consents to use the Application while working with minors. LST will not be responsible for any failure of Customer to obtain the appropriate consents that may be required to use the Application with any minors.
Customer Obligations. Customer will not: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application; or (iii) access all or any part of the Application in order to build a product or service which competes with the Application; or (iv) use the Application to provide services to third parties or provide assistance to third parties in obtaining access to the Application, except that Customer may use the Application to provide services to Authorized Users; or (v) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Application available to any third party except the Authorized Users, or (vi) shall not upload, email, post, publish, distribute or otherwise transmit any of your content containing a solicitation of funds, promotion, advertising, solicitation for goods or services, or other commercial matter.
Treatment of Confidential Information. No Party (the “Receiving Party”) will duplicate, use or disclose all or any part of the other Party’s Confidential Information (the “Disclosing Party”), except in accordance with the terms and conditions of this Agreement, and the Confidentiality Agreement as incorporated by reference. Each Party will have an appropriate agreement with each of its employees, contractors and agents having access to the other Party's Confidential Information sufficient to enable that Party to comply with all the Trial Periods of this Agreement. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information with the same standard of care and procedures which it uses to protect its own trade secrets and Confidential Information of like importance and, in any event, will adopt or maintain procedures reasonably calculated to protect such Confidential Information. Customer may disclose any such information requested by the government agencies that may require that information in the performance of examinations and audits of their clients.
“Confidential Information” means each Party’s information that would reasonably be considered confidential and/or proprietary given the nature of the information or the manner of disclosure and regardless of whether such was marked or stamped as confidential, including, but not limited to, personally identifiable student education records as defined in the Family Educational Rights and Privacy Act of 1974 (“FERPA”).
Remedies. If Customer or any of its employees, agents, or representatives attempt to use, duplicate, reverse engineer, or dispose of the Application, in whole or in part, in a manner contrary to the Trial Periods of this Agreement, LST will have the right, in addition to such other remedies as may be available to it, to injunctive relief enjoining such acts or attempts, it being acknowledged that legal remedies are inadequate.
Representation and Warranties. Customer makes the following representations and warranties: (i) Customer is a teacher or licensed specialist whose students have cortical visual impairment; and (ii) Customer has the power and authority to enter into and perform this Agreement; (iii) Customer is duly authorized to execute this Agreement; and (iv) Customer not restricted in any way, by agreement or otherwise, from entering into this Agreement.
Disclaimer of Warranties; Limitation of Liability.
Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE 4 COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS 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.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. The following limitation will survive termination of this Agreement.
IN NO EVENT SHALL LST BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA, OR DATA USE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EVEN IF LST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LST’S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNT OF TWO HUNDRED UNITED STATES DOLLARS ($200.00).
Intellectual Property; Infringement Indemnity
Intellectual Property Rights. Customer acknowledges and agrees that LST and/or its licensors own all Intellectual Property Rights in the Application. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Application, Maintenance Releases, Application or LST Data.
Customer Indemnity. Customer agrees to indemnify and hold LST and its officers, directors, agents, employees, successors and assigns harmless from and against any and all losses incurred by an Indemnified Party arising from any third party claim arising out of Customer’s misuse of any Application or Licensed Materials provided hereunder or arising out of Customer’s violation of any law or regulation, in connection with its use of the Application or Licensed Materials; provided, however, that (i) Customer is given prompt notice of any such claim, (ii) Customer has the right to control and direct the defense of such claim, and (iii) Customer fully cooperates with the Indemnified Party in such defense.
Ownership. Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of the Customer Data and Authorized User Data.
Responsibility for Customer Data. Customer acknowledges that responsibility for all Customer Data and any communications with others or between Authorized Users using the Application is the sole and exclusive responsibility of Customer and that LST will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person's rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to Customer Data. Customer agrees to indemnify and hold harmless LST from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Data, to the extent not caused by LST's willful misconduct.
Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You 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 Application available outside the US.
Assignment. Customer may not assign this Agreement.
Amendment; Waiver. Any amendments to this Agreement must be in writing and signed by both Parties. No delay or omission by either Party in exercising any right or remedy hereunder available to that Party will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a bar to, or waiver of, any right or remedy on any future occasion.
Limitation on Claims. Except for actions for breach of LST’s Intellectual Property or proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than two years after the cause of action has accrued.
Severability. If any provisions of this Agreement will be for any reason held to be invalid or unenforceable, such invalidity or unenforceability will not affect any other provision hereof, but this Agreement will be construed as if such invalid or unenforceable provision had never been contained herein.
Applicable Law; Venue. This Agreement and all rights and duties hereunder, including but not limited to all matters of construction, validity and performance, will be governed by the law of Delaware regardless of its conflicts of laws provisions.
Entire Agreement. This Agreement, any exhibits and any mutually-executed amendments constitute the entire agreement between the Parties regarding the subject matter hereof, and any prior understanding or representation of any kind regarding the subject matter hereof preceding the Effective Date will not be binding upon either Party except to the extent incorporated into this Agreement.
Electronic Signature. Signatures to this Agreement may be delivered via facsimile, electronic mail (including pdf), electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.