INVISIONAPP, INC. (“INVISION”) LICENSES THE CRAFT SOFTWARE AND RELATED DOCUMENTATION (COLLECTIVELY, “SOFTWARE”) PURSUANT TO THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). BY CLICKING ON THE “DOWNLOAD” LINK, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE AND YOU WILL NOT HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE. INVISION’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
IF YOU ARE ACCESSING AND OR USING THE SOFTWARE ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE ALL RIGHT POWER AND AUTHORITY NECESSARY TO BIND SUCH ENTITY TO THIS AGREEMENT. ALL REFERENCES TO “YOU” OR “LICENSEE” HEREIN SHALL BE DEEMED TO INCLUDE BOTH THE INDIVIDUAL USER AND THE ENTITY, AND THE ENTITY SHALL BE RESPONSIBLE FOR ALL THE ACTS OR OMISSIONS OF THE INDIVIDUAL IN CONNECTION WITH THE SOFTWARE.
INVISION ENCOURAGES LICENSEE TO READ THIS AGREEMENT CAREFULLY AND ASSESS ITS USE OF THE SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE.
1. SOFTWARE LICENSE. Subject to compliance with all of the terms and conditions of this Agreement, InVision grants to Licensee, a limited, nontransferable, nonexclusive license to use the Software for the term specified in Section 4 below (a) in object code form and (b) in accordance with the associated documentation (“Documentation”). Each downloaded copy of the Software may only be used by one user. Licensee may make a single copy of the Software for safekeeping or "backup" purposes, provided all original proprietary notices are retained on any such copy.
3. RESTRICTIONS ON USE. InVision and its licensors shall at all times retain title to and ownership of the Software and the intellectual property rights therein. Licensee may not, directly or indirectly, (a) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), attempt to discover the source code or underlying ideas or algorithms of the Software or otherwise circumvent any technological measure that controls access to the Software; (b) create derivative works based on the Software; (c) copy (except for the purposes set forth above), rent, lease, distribute, or otherwise transfer rights to the Software; (d) use the Software for timesharing or service bureau purposes; (e) use the Software or any of the output generated by the Software to develop a competing product or service; (f) use the Software to conduct any benchmarking or similar tests or reports; (g) remove any proprietary notices or labels on the Software; or (h) use the Software outside of any use restrictions set forth in the Documentation or as otherwise provided by InVision. This Agreement is a license, not a sale of the Software and does not give Licensee any rights not expressly granted herein. Title and any related rights in the content accessed through use of the Software are the property of the applicable content owner and are protected by applicable law. The licenses granted pursuant to this Agreement give Licensee no rights to such content.
4. TERM. This Agreement and the rights and obligations granted herein shall commence on the date on which Licensee clicks the “DOWNLOAD” link and shall continue indefinitely unless this Agreement is terminated in accordance herewith.
5. TERMINATION. Licensee may terminate this Agreement and the licenses granted herein at any time by destroying or removing from all computer systems all copies of the Software. InVision may (a) terminate this Agreement immediately upon notice to Licensee for any or no reason at all; or (b) suspend or limit Licensee’s access to or use of the Software if Licensee’s use of the Software results in (or is reasonably likely to result in) damage to or material degradation of the Software which interferes with InVision’s ability to provide access to the Software to other users. This Agreement and the licenses granted herein will immediately and automatically terminate (i) if Licensee breaches any provision of this Agreement; (ii) if Licensee becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement or comparable proceeding; or (iii) as otherwise set forth in Section 12 below. Upon any termination or expiration of this Agreement, Licensee shall (A) discontinue all use of the Software; (B) immediately destroy or erase all copies of the Software; and (C) return or destroy all InVision Confidential Information (defined below). All provisions of this Agreement which by their nature should survive termination shall survive termination, including without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
6. TAXES. Licensee will be responsible for all taxes (including sales, use, property, excise, value added and gross receipts but not including taxes based on InVision’s income), import duties and fees and charges of any kind levied or imposed by any federal, state or local governmental entity with respect to the Software.
7. CONFIDENTIALITY. Licensee acknowledges that the underlying source code and object code of the Software are the confidential and proprietary information of InVision (“Confidential Information”). In no event will Licensee reproduce, publish, disclose or use any Confidential Information other than as expressly permitted herein.
8. LICENSEE CONTENT. Licensee represents, warrants and covenants that Licensee has all necessary rights to upload, submit or provide any data, content, information or other material provided, uploaded, or submitted by or on behalf of Licensee in the course of using the Software and none of such data, content, information or other material shall (a) infringe upon the rights of any third party, including but not limited to trademark, copyright, patent, trade secret or other intellectual property or confidentiality rights; or (b) violate any applicable law, rule or regulation or breach any of Licensee’s contractual obligations to third parties.
9. UPDATES; FEEDBACK. Licensee may report bugs or issues in the Software to InVision or provide other feedback to InVision about the Software. InVision may at is sole discretion, but is not required to, provide maintenance or support under this Agreement. InVision may also, in its sole discretion, provide updates or releases related to the Software. Updates and releases may contain either or both enhancements to existing functions and corrections to defects and may or may not include additional features. Updates and releases may also require the execution of another license agreement with InVision. All updates and releases provided hereunder shall be deemed to be Software for purposes of this Agreement. Licensee hereby assigns to InVision all rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Software that Licensee or any of its representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Software.
10. DISCLAIMER; RELEASE. INVISION HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE USE, SELECTION, QUALITY AND PERFORMANCE OF THE SOFTWARE.
11. LIMITATION OF LIABILITY. NEITHER INVISION NOR ITS LICENSORS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, DATA OR PROFIT, INTERRUPTION OF USE, STOPPAGE OF OTHER WORK, IMPAIRMENT OF OTHER ASSETS OR COMPUTER FAILURE OR MALFUNCTION; (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (C) FOR ANY MATTER BEYOND INVISION’S REASONABLE CONTROL OR (D) FOR ANY DAMAGES IN EXCESS OF $500, EVEN IF INVISION OR ITS LICENSORS SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
12. INTELLECTUAL PROPERTY INFRINGEMENT. In the event that the Software is held by a court of competent jurisdiction or reasonably believed by InVision to constitute an infringement of a third party’s intellectual property rights, InVision may at its option (a) modify the infringing portion of the Software so that it is non-infringing; (b) procure for Licensee sufficient rights to continue to exercise its rights under this Agreement; or (c) terminate this Agreement and the license hereunder. This Section represents the sole right and remedy available to Licensee if the Software infringes the intellectual property rights of a third party.
13. NOTICES. All notices hereunder shall be in writing, in English, and (a) if to InVision, effective upon receipt and shall be sufficient only if personally delivered, delivered by a major commercial rapid delivery courier service or mailed by certified or registered mail, return receipt requested, to: InVisionApp, Inc., Attn: Operations Team, 41 Madison Avenue, Floor 25, New York, NY 10010 or (b) if to Licensee, effective upon sending to the email address on file with InVision.
14. EXPORT CONTROLS. Licensee shall comply with all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. Licensee will not export, or allow the export or re-export of, the Software in violation of any such laws, restrictions or regulations. Licensee shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of the Software to any location in compliance with all applicable laws and regulations prior to delivery thereof by InVision.
15. U.S. GOVERNMENT RESTRICTED RIGHTS. If any user of the Software is an agency, department or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Software is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation. The use of the Software and Documentation is further restricted in accordance with the terms of this Agreement.
16. MISCELLANEOUS. This Agreement shall be governed by the laws of the United States and the State of New York without regard to the conflicts of laws provisions thereof. InVision and Licensee hereby agree that the sole and exclusive jurisdiction and venue for any litigation arising out of or relating to this Agreement or the subject matter hereof shall be in an appropriate federal or state court in New York, New York, USA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement together with any Documentation represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them with respect to the subject matter hereof. This Agreement may be amended only by a writing executed by duly authorized representatives of both parties. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable. The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. Every exemption from liability, limitation and condition contained in this Agreement for the benefit of InVision and every defense and immunity applicable to InVision or to which InVision is entitled will also be available and extend to every parent company, subsidiary, affiliate, and licensor of InVision and their respective directors, officers, employees, agents and independent contractors. Licensee formally and irrevocably grants its consent to any assignment, substitution or any other legal action required to make the previous sentence fully enforceable. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is not intended to nor shall it be construed as a joint venture, association, partnership or other form of business or agency relationship. Any waivers shall be effective only if made in writing executed by duly authorized representatives of both parties. InVision’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision. In any action to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. Licensee acknowledges and agrees that due to the unique nature of the Software, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may result in irreparable harm to InVision, and therefore, that upon any such breach or threat thereof, InVision shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
17. ACKNOWLEDGEMENT. Licensee acknowledges and agrees that it has read and understands this Agreement and that this Agreement has the same force and effect as a signed agreement.