Software License and Equipment Lease Agreement
Please read the terms of this Software License and Equipment Lease Agreement ("Agreement") set out below carefully prior to registering, downloading, installing or using the System defined in Article 1 of this Agreement.
Under the terms of this Agreement executed by and between Vital Enterprises Software, Inc., a Delaware corporation ("Vital Enterprises"), and you, a physical person or legal entity ("User"), User is entitled to use the System defined in Article 1 of this Agreement. By registering, downloading, installing or using any part of the System, User is expressing User's consent to these terms.
The "System" comprises all software provided by Vital Enterprises, including but not limited to VitalCom, VitalVault, VitalVideo, Workflow.
2. Use of System and Software License
Subject to terms of this Agreement, User wishes to obtain from Vital Enterprises, and Vital Enterprises grants to User a personal, nonsublicensable, nonexclusive license to use the System listed in Article 1 of this Agreement without modification only in accordance with the documentation supplied by Vital Enterprises, solely for User's internal testing and use as authorized by Vital Enterprises during the term of this Agreement. User shall not reverse engineer any software in the System, or otherwise attempt to discover any System source code or underlying Proprietary Information (as that term is defined below).
3. Use of Equipment and Lease Agreement
If applicable, Vital Enterprises will provide User with equipment to run the System on under the terms of a lease agreement. User acknowledges that Vital Enterprises is the Owner of any leased equipment, which may include Smart Glasses, Tablets, Chargers, and any other physical products that support the System's operations. User further agrees to use any leased equipment in a reasonable manner consistent with the purpose for which the product was designed, in accordance with any manufacturer's directions, and to practice reasonable care and maintenance in the use of the leased equipment.
4. Damages to Equipment, Lease Pricing, and Equipment Return
User is responsible for any damage that results from unreasonable use of the leased equipment. Equipment is least at the cost set forth in the subscription pricing terms or agreed upon by the parties. User is responsible for the timely return of the equipment at the end of the subscription period, including shipping and handling costs.
The duration of this agreement shall be defined by the User's subscription basis. The term begins on the first day of use of the software, and terminates either at the end of the subscription period, at the discretion of Vital Enterprises, or by an agreement between the parties as outlined in Article 12 of this agreement.
User acknowledges that, in the course of using the System and performing its duties under this Agreement, it may obtain or develop information relating to the System and/or to Vital Enterprises ("Proprietary Information"), including, but not limited to the System, existence of the System, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, documentation, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. During and after the term of this Agreement, User shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by User, its officers, directors, employees or agents. During or after the term of this Agreement, User will disclose the System and Proprietary Information only to those of its employees as are necessary for the use expressly and unambiguously licensed hereunder who are bound by the provisions of this Agreement. User shall not, without the prior written consent of Vital Enterprises, disclose or otherwise make available the System or copies thereof to any third party. User will not remove or export the System or any Proprietary Information from the United States. User acknowledges and agrees that due to the unique nature of Vital Enterprises' Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow User or third parties to unfairly compete with Vital Enterprises resulting in irreparable harm to Vital Enterprises, and therefore, that upon any such breach or threat thereof, Vital Enterprises shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
Title to and ownership of the System and all copies thereof shall be and at all times remain in Vital Enterprises. All reports referred to above and all other feedback and suggestions (and all information contained in any of the foregoing) are the sole property (and Proprietary Information) of Vital Enterprises. Any developments or modifications made during the term of this Agreement by Vital Enterprises or the User relating to the System, whether or not influenced or suggested by the User, are also the sole property of Vital Enterprises. User hereby assigns to Vital Enterprises any interest it has or may acquire in any of the foregoing, as well as all related intellectual property rights; and will cooperate to perfect or further evidence such assignments.
8. Warranty Disclaimer
The parties acknowledge that the System is provided "AS IS" and may not be functional on any machine or in any environment. VITAL ENTERPRISES DISCLAIMS ALL WARRANTIES RELATING TO THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Remedies and Damages
VITAL ENTERPRISES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. VITAL ENTERPRISES SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE FOREGOING IS NOT INTENDED TO LIMIT DAMAGES FOR BODILY INJURY OR DEATH THAT TO THE EXTENT SUCH DAMAGES MAY NOT BE LEGALLY LIMITED.
10. Controlling Law, Attorney Fees and Severability
This Agreement shall be governed by and construed in accordance with the laws of the State of California. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorney fees to the extent permitted by state law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and without prejudice to the remaining terms. This Agreement shall otherwise remain in effect and fully enforceable.
11. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly cancelled. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto. In any case, additional or different terms and conditions of any purchase order or similar document will be void and of no effect even if signed by both parties.
This Agreement may be terminated by either party for any reason or no reason upon three (3) days' written notice to the other party, or immediately upon notice of any breach by the other party of the provisions of this Agreement, and in any case will terminate 60 days after the date on which the Agreement was entered into. Upon termination, the license granted hereunder shall terminate and User shall immediately return the System, together with any and all documents, notes and other materials respecting the System to Vital Enterprises, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.