"Software" is defined as the RTVision computer program with which this Software License Agreement ("Agreement") is included and any updates or maintenance releases thereto. This Agreement sets forth the terms and conditions for licensing of the RTVision Software from RTVision to you the Licensee and installing and using the RTVision software indicates that you have read and understand this Software License Agreement and you accept its terms and conditions.
THIS AGREEMENT ("Agreement"), is by and between RTVision, Inc., a Minnesota corporation ("RTVision") and Customer.
Whereas, RTVision has developed certain software applications and platforms which it makes available to subscribers via a hosted or on-premise, internet-based service delivery method (the "Service").
Whereas, the Customer wishes to use the Service in its business operations.
Whereas, RTVision has agreed to provide and the Customer has agreed to utilize and pay for the Service subject to the terms and conditions of this Agreement.
(a) Grant. Upon the purchase of a User Subscription, RTVision hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorized Users to use the Service during the Term solely for the Customer's specified business operations. The Customer shall use commercially reasonable efforts to prevent any unauthorized access to, or use of, the Service, and in the event of any such unauthorized access or use, promptly notify RTVision. The Customer acknowledges and agrees that RTVision and/or its licensors own all intellectual property rights in the Service. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service.
(b) Intellectual Property. The Customer acknowledges and agrees that RTVision and/or its licensors own all Intellectual Property Rights in the Service. As used herein, "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Except as expressly provided in this Agreement, nothing herein grants to the Customer any rights to, or in, any Intellectual Property Rights of RTVision or its licensors.
Subject to, and conditioned upon the Customer's timely payment of the Subscription Fees as described in Section 4, RTVision shall, during the Term, provide the Service to the Customer on and subject to the terms of this Agreement. RTVision reserves the right, in its sole discretion, to make any changes to the Service that it deems necessary or useful to comply with applicable law or to maintain or enhance the quality or delivery of its services to its customers or the Service's cost efficiency or performance.
If the Customer subscribes for the Service on the hosted model, RTVision shall use commercially reasonable efforts to make the Service available 24 hours a day, seven days a week, at least 99% of the time as measured over the course of each calendar month during the Term, except for: (i) scheduled downtime, (ii) Service downtime or degradation due to circumstances beyond RTVision's reasonable control, including Customer's or any Authorized User's misuse of the Service or use of materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Service that are not proprietary to RTVision, and (iii) any suspension or termination of Customer's or any Authorized Users' access to or use of the Service as permitted by this Agreement. Customer acknowledges and agrees that RTVision uses the services of one or more third parties to host its web-based servers, applications and data, and availability of the Service is subject to performance of such third parties of their respective hosting obligations. RTVision will use commercially reasonable efforts to give the Customer at least 24 hours' prior notice of all scheduled downtime.
RTVision will provide the Customer with RTVision's standard customer support services during normal business hours in accordance with RTVision's Support Services Policy in effect at the time that such services are provided. RTVision may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at RTVision's then current rates. Customer support services are available via telephone, e-mail and virtually through remote system access. RTVision services include periodic updates that include bug fixes, system enhancements, system-wide improvements and features. RTVision will notify the Customer of any Service upgrades. From time to time, new versions of operating software, network software, database managers, internet browsers, etc. are released. The Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to RTVision's data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet. The Customer also acknowledges that the Service may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites not managed or contracted with RTVision and that the Customer enters into its own contracts with third-party vendors solely at its own risk. RTVision makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, directly with any such third party.
Notwithstanding any other provision of this Agreement to the contrary, RTVision may suspend, terminate or otherwise deny Customer's, any Authorized User's or any other person's access to or use of all or any part of the Service, without incurring any resulting obligation or liability, if: (i) RTVision receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires RTVision to do so; or (ii) RTVision believes, in its reasonable discretion, that: (a) the Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (b) the Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (v) the Term expires or this Agreement is terminated. This paragraph does not limit any of RTVision's other rights or remedies, whether at law, in equity or under this Agreement.
(a) Ownership and use of data. The Customer shall own all rights, title and interest in and to all information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Service ("Customer Data"). The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer hereby irrevocably grants all such rights in or relating to Customer Data: (i) to RTVision, its subcontractors and employees; and (ii) to RTVision as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. If the Customer subscribes for the Service on the hosted model, RTVision will run nightly backups of all data, including nightly incremental, and monthly backup rotation. The foregoing does not replace the need for the Customer to maintain regular data backups or redundant data archives. If the customer subscribes to the on-premise license, it is the responsibility of the customer to create their own backups. RTVision HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for RTVision to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by RTVision in accordance with its archiving procedures. RTVision shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by RTVision to perform services related to Customer Data maintenance and back-up).
(b) Authorization limitations and restrictions. The Customer shall not, and shall not permit any other person to, access or use the Service except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, the Customer shall not, except as this Agreement expressly permits: (i) copy, modify or create derivative works or improvements of the Service; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Service to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, except for Authorized Users; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (iv) bypass or breach any security device or protection used by the Service or access or use the Service other than by an Authorized User through the use of his or her own then-valid access credentials; (v) input, upload, transmit or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Service, in whole or in part; or (vii) access or use the Service for purposes of competitive analysis of the Service, the development, provision or use of a competing software service or product or any other purpose that is to RTVision's detriment or commercial disadvantage. If the Customer becomes aware of any actual or threatened activity prohibited by this Section, the Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify RTVision of any such actual or threatened activity.
(c) Prohibited data. The Customer hereby acknowledges that the Service is not designed with security and access management for processing the following categories of information: (i) information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, including without limitation all "nonpublic personal information" as defined under the Gramm-Leach-Bliley Act and all rules and regulations issued thereunder; (ii) data that is classified and or used on the U.S. Munitions list, including software and technical data; (iii) articles, services and related technical data designated as defense articles or defense services; and (iv) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, "Prohibited Data"). The Customer shall not, and shall not permit any Authorized User or other person to, provide any Prohibited Data to, or process any Prohibited Data through, the Service. The Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
(d) System Control. The Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (the "Customer Systems"), and sole responsibility for all access to and use of the Service by any person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Service or RTVision; (ii) results obtained from any use of the Service; and (iii) conclusions, decisions or actions based on such use. The Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Service; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data.
The Customer shall pay the Subscription Fees to RTVision for the User Subscriptions, in full, without setoff, deduction, counterclaim or withholding for any. If RTVision has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of RTVision, RTVision may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Service and RTVision shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and interest shall accrue on such due amounts at an annual rate equal to 18% per annum or the highest amount permitted under applicable law, whichever is less, commencing on the due date and continuing until fully paid, whether before or after judgment. RTVision shall be entitled to increase the Subscription Fees, and/or the fees payable at the start of each Renewal Period upon 60 days' prior notice to the Customer. If, at any time during the term of the agreement, the Customer exceeds the amount of disk storage space allotted to its anticipated use levels, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's then current excess data storage fees.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that is or becomes publicly known other than through any act or omission of the receiving party; was in the other party's lawful possession before the disclosure; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; is independently developed by the receiving party, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. In the case of any compelled disclosure by any court of competent jurisdiction or by any regulatory or administrative body then, to the extent permitted by applicable law, the receiving party shall: (i) promptly, and prior to such disclosure, notify the disclosing party in writing of such requirement so that the disclosing party can seek a protective order or other remedy, and (ii) provide reasonable assistance to the disclosing party, at the disclosing party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, use the other's Confidential Information for any purpose other than the performance of the party's obligations and exercise of its rights under this Agreement, or disclose the other's Confidential Information to employees and/or representatives other than Authorized Users and those having a need to know such Confidential Information for purposes of exercising its rights under this Agreement. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute RTVision's Confidential Information. RTVision acknowledges that the Customer Data is the Confidential Information of the Customer. This clause shall survive termination of this Agreement, however arising.
(a) No other warranties. Except as expressly and specifically provided in this Agreement, RTVISION HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND RTVISION SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, RTVISION MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. RTVision shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to RTVision by the Customer in connection with the Service, or any actions taken by RTVision at the Customer's direction.
(b) Limitation of liability. Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the use of the Service by the Customer, and for conclusions drawn from such use. RTVision shall not be liable whether in tort (including for negligence or breach of statutory duty), STRICT LIABILITY, contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect, PUNITIVE, EXEMPLARY or consequential loss, costs, damages, charges or expenses however arising under this Agreement, REGARDLESS OF WHETHER Customer WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. RTVision's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose. RTVision shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of RTVision or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of RTVision or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
(a) Term and Renewal. This Agreement shall, unless otherwise terminated as provided in this clause, commence on the Effective Date and shall continue for a period of 36 months (the "Initial Subscription Term") and, thereafter, this Agreement shall be automatically renewed for successive periods of 36 months (each a "Renewal Period"; the Initial Subscription Term together with any Renewal Period(s) are sometimes herein referred to as the "Term"), unless either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiration of the applicable Initial Subscription Term or Renewal Period; or otherwise terminated in accordance with the provisions of this Agreement.
(b) Early Termination. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if the other party commits a material breach of any of the terms of this Agreement other than non-payment of fees due hereunder and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach. In addition, either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Termination. Upon termination of this Agreement for any reason, all licences granted under this Agreement shall immediately terminate; each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party; RTVision may destroy or otherwise dispose of any of the Customer Data in its possession unless RTVision receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. RTVision shall use commercially reasonable efforts to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by RTVision in returning or disposing of Customer Data; and the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of Minnesota. The parties irrevocably agree that the state District Courts of the State of Minnesota shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Each party waives its right to a jury trial in any court action arising between the parties, whether under this Agreement of otherwise related to the Service, and whether made by claim, counterclaim, third party claim or otherwise. This Agreement has been entered into on the first date of software use.
All notices, requests, demands and determinations under this Agreement (other than routine operational communications) shall be in writing and shall be deemed duly given: (i) when delivered personally (against a signed receipt), (ii) on the designated day of delivery (other than a weekend or government holiday) after being timely given to an express overnight courier with a reliable system for tracking delivery, or (iii) four (4) days after the day of delivery, when sent by first class mail (postage prepaid and return receipt requested) to the addresses of the parties set forth at the beginning of this Agreement. Either party may change the address(es) or addressee(s) for notice hereunder upon written notice to the other. Because facsimile numbers and email addresses may change over time and facsimile transmissions and emails may not be treated with the same degree of seriousness as more formal communications, notices given by facsimile or email shall only be deemed effective if: (i) sent by confirmed facsimile (in the case of faxes) or responded to by the intended recipient or his or her successor (in the case of emails), and (ii) a copy is sent by another means specified in this paragraph.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement, together with any other documents expressly incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without RTVision's prior written consent. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.