Software License Agreement
IMPORTANT: READ THE FOLLOWING CAREFULLY BEFORE USING THE PRODUCT
WHEREAS VISUAL MINING, INC. HAS DEVELOPED COMPUTER SOFTWARE PROGRAMS AS DESCRIBED IN ATTACHMENT A, CONSISTING OF COMPUTER SOFTWARE (THE "SOFTWARE"), AND ACCOMPANYING DATA, DOCUMENTATION AND OTHER MATERIALS, THE COMBINATION OF WHICH ARE REFERRED TO AS THE "PRODUCT", TO WHICH THIS LICENSE AGREEMENT (THIS "AGREEMENT") APPLIES IS THE PROPERTY OF VISUAL MINING, INC. ("VISUAL MINING"). YOUR RIGHT TO USE, COPY, AND DISTRIBUTE THE PRODUCT IS GOVERNED IN ALL RESPECTS BY THIS AGREEMENT. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND VISUAL MINING GOVERNING YOUR USE OF THE PRODUCT. BY DOWNLOADING, INSTALLING OR USING THE PRODUCT, YOU (AND YOUR ORGANIZATION, IF APPLICABLE) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE PRODUCT. IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, CONTACT VISUAL MINING AT INFO@VISUALMINING.COM OR CALL (301) 795-2200 or 1.800.308.0731.
- LICENSE GRANT
Visual Mining grants and User (Licensee) accepts, during the term of this Agreement, a non-exclusive and nontransferable license to use the Visual Mining Software (in machine-readable, object-code form only) and its related documentation, subject to the terms and conditions of this Agreement, the type of License granted as defined in Section 2 below. Licensee may make copies of the Software for back-up purposes only, provided that Licensee reproduces the Visual Mining copyright and other proprietary rights notices on all such copies. This license does not include any rights to disclose, license, or otherwise transfer the Software, related documentation, or other proprietary information of Visual Mining.
Licensee shall keep complete and accurate records relating to its use of the Product in accordance with standard business practices in the computer industry. Licensee grants to Visual Mining or its independent accountants the right to examine its books, records and accounts during Licensee’s normal business hours upon at least ten (10) days advance written notice at mutually agreeable times, no more frequently than once annually, to verify compliance with the provisions of this agreement. Visual Mining or its independent accountants shall, at Licensee’s request, agree in writing to maintain in confidence any proprietary information obtained during the course of such audit. In the event such audit discloses that the permitted number of Central Processing Units (CPUs), as described in Section 2B is exceeded, Licensee shall promptly pay Visual Mining the appropriate license fee for the additional CPUs plus interest equivalent to ten percent (10%) per annum and shall promptly reimburse Visual Mining for all expenses associated with such examination within thirty (30) days notice by Visual Mining. At Visual Mining’s option, Visual Mining may terminate this license for failure to pay the required license fees.
- TYPE OF LICENSE
A. Evaluation License: The Product is available for use free-of-charge for the purpose of evaluating and testing only. Section 5A of this Agreement is not applicable to this license. This evaluation and testing period is not to exceed thirty (30) days unless otherwise agreed to by both parties in writing. At the end of the evaluation period, Licensee must secure and pay for a Full License or stop using the Product and erase or otherwise destroy all copies of the Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and return to Visual Mining all other existing copies (including original copies) of part or all of the Product and related documentation. In the event Licensee chooses to discontinue using the Product, Licensee shall still be bound by the terms as set forth in Section 5, CONFIDENTIALITY. The Product is delivered "AS IS" with no support, warranty, or other obligation to you. The entire risk as to the quality and suitability of the Product is borne by Licensee.
B. End User License: An End User License is a perpetual license to use the Product solely for Licensee’s internal use and operations within Licensee’s application(s) for up to the licensed number of central processing units (CPU’s). CPUs are calculated and aggregated by machine (e.g. if the Software is installed on two computers each having a dual processor, the total CPUs required is four (4)). The license will become effective only upon your payment in full of all license fees payable under Visual Mining order confirmation or invoice. Section 5 and 6 of this Agreement is applicable to this license. Licensee may make only as many copies of the Product as necessary to effectuate the foregoing, provided, however, that Visual Mining grants to Licensee permission to make one additional copy of the Software for archival purposes. Licensee must contact Visual Mining and pay additional license fees if Licensee desires to change the type of End User license or add additional CPU’s.
C. Visual Mining Order Confirmation: Visual Mining order confirmation or invoice, if any, will specify which plan is applicable to you. In the absence of any such specification, the "Evaluation License" plan is applicable. The permitted maximum number of CPU’s on which the Software may be stored and used is stated on the Visual Mining invoice or order confirmation. If the maximum number of CPUs is not so indicated, this is a dual (2) CPU license, and the Software may be stored and used on no more than two CPUs. This license is NOT a site or enterprise license. Licensee may make only as many copies of the Product as necessary to effectuate the foregoing, provided, however, that Visual Mining grants to Licensee permission to make one additional copy of the Software for archival purposes. Licensee must contact Visual Mining and pay additional license fees if Licensee desires to increase the number of computer systems on which Licensee is authorized to store and operate the Software, or change the type of license to a site or enterprise license.
D. Early Availability Software Evaluation. If Licensee is using an early availability evaluation copy of the Product, Attachment B is incorporated into and made a part of this Agreement.
- OWNERSHIP AND RESTRICTIONS
A. Licensee acknowledges and agrees that, as between Visual Mining and Licensee, the Product and all authorized copies thereof and all copyrights, trademarks and other intellectual property rights with respect thereto, are and will at all times be the property of Visual Mining and is protected under U.S. and foreign copyright, trade secret and other laws. The Product is licensed, not sold, and all right, title, and interest in and to the Product remains with Visual Mining. This Agreement does not convey to you an interest in or to the Product but only a limited right to use revocable in accordance with the terms of this Agreement.
B. Licensee may not incorporate all or part of the Product in any toolkit, development kit or other software product that duplicates all or part of the functionality of the Product. Licensee may not decompile, disassemble, reverse engineering, reverse compile, translate, disassemble, modify, or create derivative works of the Product or any portion thereof. Except as specifically permitted in Section 2 of this Agreement, Licensee may not assign, sublicense, distribute, sell, transfer, pledge, lease, rent, share or use the Product in a time sharing arrangement or online subscription service, disclose the Product or any portion thereof to or with any third party or use the Software in any other unauthorized manner unless with prior written permission of Visual Mining management. Additionally, Licensee shall not distribute to any third party any documentation, users guides, examples or chart templates that Visual Mining provides for or with its Software, nor shall Licensee directly expose Visual Mining’s license key(s) to any third party.
C. Acknowledgements: If the licensed Software includes or is otherwise applicable to Visual Mining’s NetCharts Designer, Licensee shall be aware that the NetCharts Designer Software includes open source software developed by the Eclipse Foundation, namely the Eclipse framework. The Eclipse software is covered by the following license agreement: Common Public License - v 1.0. Source code for the Eclipse software is available through their website, www.eclipse.org. - PAYMENT AND RELATED TERMS :
Fees for the Software and for all related support, training and other services offered by Visual Mining are set forth in an applicable invoice, as outlined in Section 2C above. Licensee is responsible for all applicable shipping charges and taxes (except for taxes based upon Visual Mining’s net revenues or net income). All amounts owed to Visual Mining on Licensee’s Initial Purchase shall be paid within thirty (30) days from the Effective Date of this Agreement. A late payment charge of one and one-half percent (1½%) per month or the maximum allowed by law, whichever is less, shall apply to all overdue invoices.
- TECHNICAL SUPPORT:
For individual Licensees for a period of thirty (30) days from the date of purchase, only one (1) registered user of licensee who purchased the Product shall have access to technical support free of charge. After such period, unless Licensee pays for subscription support under Visual Mining’s Product Support and Enhancement program, Licensee will be billed on a per call or email basis. Upgrades and enhancements to the Product and documentation are not included with free support, but are however, part of the paid Enhanced Product Support and Enhancement program. Visual Mining reserves the right to modify and/or enhance Software and/or documentation without obligation to notify any person or organization of such changes.
A. Error Corrections: Visual Mining shall exercise commercially reasonable efforts to correct significant errors reported by the Licensee in the current unmodified release of the Software in accordance with the priority levels described below reasonably assigned to such error by Visual Mining. If a reported error has caused the Software to be inoperable, or the Licensee's notice to Visual Mining states that the reported error is substantial and material with respect to the Licensee's use of the product, Visual Mining shall use its best commercial efforts to correct such error or to provide expeditiously a software patch or bypass around such error. The Licensee acknowledges that not all non-material reported errors are corrected.
B. Software Upgrades and Enhancements: On an if-and-when-available basis, Visual Mining, Inc. provides, at no additional cost for Licensees enrolled in the Enhanced Support plan, one electronic copy of all published revisions to the printed documentation and one (1) copy of (or authorization to copy): updates, upgrades, and new releases of the products, which are not designated by Visual Mining as new products for which it charges a separate fee.
C. Supported Platforms: The current supported platforms for the Software are AIX, Windows NT, Windows 2000, Windows XP, HP-UX, Linux, and Solaris.
D. Technical Support: Visual Mining provides technical assistance (via telephone, e-mail or fax) for up to four (4) of Licensee's registered users of the Software, provided Licensee is enrolled and paid for the Enhanced Support Plan. Enhanced Support members receive priority over basic support calls, and senior level support personnel will answer questions related to Visual Mining's Software and how it performs with compatible hardware systems and provide, for the current release and most previous release of the software:
- Assistance with installation on Supported Platforms.
- Explanation of any terms in our product documentation.
- Product compatibility and operation with the latest (GA) release of Internet Explorer, Netscape and Java Development Kit (JDK) Java Virtual Machines (JVM’s).
- Explanation of our product’s software and hardware requirements.
- Explanation of common performance pitfalls and suggested workarounds.
- Explanation of Visual Mining Inc.’s licensing issues and policy.
- Suggested solutions and code fragments for common Visual Mining product programming issues.
Assistance in the development of custom applications for Visual Mining’ products is not included in Product Support, however, such support is available separately through Visual Mining’s consulting group. Unless Licensee pays for annual PS&E Plan, Licensee will be billed on a per-call or email basis. All support beyond the scope of the above must be paid for on a per call basis, with an initial minimum charge of $80 for the first 30 minutes and $2.00 per minute for each additional minute. Our technical support staff are available Monday through Friday, between the hours of 9:00am through 5:00pm Eastern Standard Time. Our support staff can be accessed by telephone at (301) 795-2200, e-mail support@visualmining.com, or fax (301) 947-8293.
- CONFIDENTIAL INFORMATION:
"Confidential Information" shall mean any information provided by either Party or prepared by either Party (in oral, written, or digital form) upon review of such information, technical data, or know-how provided to either Party by the other (whether through a director, officer, employee, agent or representative) including, but not limited to, that which relates to trade secrets, research, product plans, products, services, markets, software, programming code, algorithms, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the disclosing Party. Notwithstanding the above, however, Confidential Information shall not include (i) information that is publicly known or available, or becomes publicly known or available without breach of this Agreement; (ii) any information that has been publicly disclosed by either Party or is released for public disclosure by either Party with its prior written consent; (iii) any information already ( i.e. , prior to disclosure by the other Party) rightfully in the possession of the receiving Party without an obligation of confidence; (iv) any information that is rightfully received by the receiving Party from a third party without an obligation of confidence; or (v) any information that is independently developed by the receiving Party without the use of Confidential Information of the disclosing Party.
Each Party agrees that it will hold in strict confidence and not directly or indirectly disclose the Confidential Information of the other Party to any third party at any time without the express written permission of the other Party, excepting either Party's employees, officers, directors, agents, and contractors acting for each Party who have a need to know for the purposes of this Agreement, and to use the Confidential Information of the other Party for no purpose other than the purposes expressly permitted by this Agreement. Each Party shall maintain the confidentiality and prevent accidental and other loss or disclosure of any Confidential Information of the other Party with at least the same degree of care as it uses to protect its own Confidential Information but in no event with less than reasonable care. Upon written request by either Party, the other Party shall promptly return all documents and other tangible materials representing the requesting Party's Confidential Information and all copies thereof.
Licensee acknowledges that the Product, related documentation and other related materials provided by Visual Mining are confidential information of Visual Mining ("Confidential Information"). Licensee agrees to use the Confidential Information only for the limited term of this license and solely for the purposes of this Agreement, and to take all steps reasonably necessary to prevent and restrain unauthorized or inadvertent use, disclosure, delivery, publication, dissemination or reproduction of such Confidential Information.
The obligations with respect to this Section 7 shall survive termination of this Agreement for a period of twelve (12) months following such termination by either Party for any reason.
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WARRANTIES; DISCLAIMER OF CERTAIN WARRANTIES:
A. Warranties: Visual Mining will replace, at no charge, defective media and Product materials that are returned within thirty (30) days of the original date of license. For Visual Mining's proprietary Software only, Visual Mining warrants, for a period of thirty (30) days from the original date of license, that the Software will perform in substantial compliance with the documentation accompanying the Software. If Licensee reports in writing, within thirty (30) days of the original date of license, a significant defect in the Software to Visual Mining, Licensee's sole and exclusive remedy shall be for Visual Mining to modify or correct the Software. If Visual Mining is unable to correct it or provide a reasonable workaround within ninety (90) days of the date Licensee reported the defect, Licensee may return the defective Product, and Visual Mining will refund the license fee paid. Licensee agrees that the only remedy available to Licensee will be a refund of the actual license fee paid to Visual Mining.
This warranty does not apply if the Product (a) has been altered, except by Visual Mining, (b) has not been installed, operated, repaired or maintained in accordance with any instructions provided by Visual Mining, or (c) has been subject to abnormal misuse, negligence or accident. Nor does this warranty apply to any beta software, any software made available for testing or demonstration purposes, temporary software, or any software for which Visual Mining has not or did not receive a license fee; such software is provided AS IS without any warranty whatsoever.
B. Disclaimer of Certain Warranties: Use of the Software with hardware and/or other software other than that for which it was designed is not warranted or supported by Visual Mining. Visual Mining is not responsible for problems caused by changes in the operating characteristics of the computer hardware or other software which are made after delivery of the Product. Visual Mining does not warrant that the Product will meet your requirements or that the operation of the Software will be uninterrupted or error-free.
EXCEPT AS SET FORTH IN THIS AGREEMENT, VISUAL MINING AND VISUAL MINING'S LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED. THE PRODUCT IS PROVIDED BY THE AUTHOR AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABILITY OF COMPUTER PROGRAM, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, INFORMATIONAL CONTENT, AND NON-INFRINGEMENT ARE DISCLAIMED. VISUAL MINING AND VISUAL MINING'S CONTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY PART THEREOF WILL BE SECURE OR UNITERRUPTED. IN NO EVENT SHALL THE AUTHOR OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The Software is warranted only to Licensee by Visual Mining, and Licensee shall not extend any warranties for or on behalf of Visual Mining or Visual Mining's Licensors to End Users, Resellers, or any other third parties.
- DISCLAIMER OF LIABILITY:
VISUAL MINING'S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY LICENSEE TO VISUAL MINING PURSUANT TO THIS AGREEMENT. VISUAL MINING AND VISUAL MINING LICENSORS WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF LICENSEE OR VISUAL MINING (AS APPROPRIATE) IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO THE EXTENT LICENSEE OR VISUAL MINING CAN BE SHOWN TO HAVE FAILED TO EXERCISE REASONABLE CARE IN THE PRODUCTION AND/OR SUPPLY OF THE SOFTWARE AND/OR DOCUMENTATION AND/OR THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND SUCH FAILURE RESULTS IN DEATH OR PERSONAL PHYSICAL INJURY. THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION ARE A BARGAINED-FOR-EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.
- TERM AND TERMINATION
This Agreement hereunder may be terminated by Visual Mining: (1) if Licensee breaches any Confidentiality provisions herein, (2) in the event of a material breach by Licensee of any provision of this Agreement where Licensee fails to correct such breach within thirty (30) days of written notice, or (3) for failure to pay the required licensee fees, or (4) upon the insolvency, bankruptcy, reorganization, or assignment for the benefit of creditors of Licensee. Within thirty (30) days after termination of this Agreement, Licensee shall furnish to Visual Mining written notice certifying that Licensee has (i) erased or otherwise destroyed all copies of the Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and (ii) returned to Visual Mining all other existing copies (including original copies) of part or all of the Product and related documentation. Licensee shall make prompt payment in full to Visual Mining for all amounts outstanding as of the date of termination.
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GENERAL PROVISIONS
A. Commercial Software. The Product was developed at private expense, is not in the public domain, and is commercial computer software under U.S. Defense Department and other U.S. Government acquisition regulations. No rights other than those set forth herein are granted to the U.S. Government or any other government or agency.
B. Assignment. This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporation without the express written approval of Visual Mining, except in the instance of a corporate restructuring, re-incorporation, merger, acquisition of a majority of the assignor's assets or stock, or similar corporate activity.
C. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed by (i) express courier upon written verification of actual receipt or (ii) facsimile upon confirmation of receipt generated by the sending device. All notices shall be sent to the applicable address or other address as the parties may designate in writing, with a copy to the president or to the legal department of such party. The applicable address, in the instance of Licensee, shall be the Bill To Address on the Visual Mining Order Confirmation. The applicable address for Visual Mining, Inc. shall be:
Visual Mining, Inc.
Attn: Tristan M. Ziegler
15825 Shady Grove Road , Suite 20
Rockville , MD 20850D. Governing Law. This Agreement shall be governed by and constructed in accordance with the substantive laws of the State of Maryland , without regard to its rules governing conflicts of law.
E. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement.
F. Failure To Enforce. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
G. Relationship of the Parties. Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
H. Survival of Certain Provisions. The obligation of confidentiality set forth in Section 6 of this Agreement shall survive the termination of the Agreement by either party for any reason.
I. All Amendments in Writing. No provisions in either party's purchase orders, confirmations, invoices or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
J. General Announcement. Both parties may communicate the general existence of this Agreement to other parties provided that no specific terms and conditions in this Agreement are disclosed.
K. Entire Agreement. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of this Agreement. No waiver of any breach of this Agreement shall be effective unless in writing. This Agreement (including all Exhibits) contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements, negotiations, proposals and communications between the parties relating to the subject matter hereof. Moreover, this Agreement shall replace and supersede any Visual Mining end user license agreement included with the package of any Software used by Licensee. The parties have read this Agreement and agree to be bound by its terms. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party. This Agreement may be executed in counterparts.
Attachment A
Products
This Attachment A is a part of the Visual Mining License Agreement.
Product Name Version:
- NetCharts and NetCharts Applets 4.5 and point releases
- NetCharts Pro 4.5 and point releases
- NetCharts Designer 4.5 and point releases
- NetCharts Server 4.5 and point releases
- NetCharts Reporting Suite 4.5 and point releases
Documentation and Other Materials:
Visual Mining Chart Definition Reference Manual, Installation, User, Programmer, and Administrator Guides, Online Tutorials, Example charts, programs and scripts, and Release Notes.
