TRUOI SOFTWARE LICENSING AGREEMENT
BY CLICKING ON THE “ACCEPT” BUTTON, INSTALLING OR USING THIS SOFTWARE, OR UTILIZING THIS SOFTWARE THROUGH THE INTERNET ON A HOSTED SERVER, YOU AGREE TO BE BOUND BY THE TRUOI SOFTWARE LICENSING AGREEMENT (“AGREEMENT”). IF YOU AND/OR YOUR ORGANIZATION DO NOT AGREE TO THE AGREEMENT TERMS, PROMPTLY UNINSTALL AND/OR RETURN THE SOFTWARE TO WHERE YOU OBTAINED IT OR IN THE EVENT OF A HOSTED SERVER STOP ACCESSING THIS SOFTWARE.
YOU AGREE THAT USE OF THE SOFTWARE PRODUCT CONSTITUTES AN ACKNOWLEDGMENT THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND THAT LICENSEE SHALL BE BOUND BY ITS TERMS AND CONDITIONS.
YOU ALSO ACKNOWLEDGE AND REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LICENSEE.
This Agreement was last updated on June 30, 2022.
THIS AGREEMENT AND LICENSE (“Agreement”) is between iViz Group, Inc. (operating as TruOI as an Assumed Name), a Delaware corporation having a principal place of business at 900 Tower Drive, 4th Floor, Troy, MI 48098 (“TruOI”) and the individual and/or organization licensing and installing TruOI Software (“Licensee”). This Agreement is entered into effective as of the date of delivery of software to the Licensee, whether through electronic delivery or through regular disk media, and shall continue perpetually or until the end of the licensing period, unless sooner terminated for breach.
W I T N E S S E T H:
WHEREAS TruOI or an associated company is the owner of certain computer software and provides certain maintenance and support services as further described herein; and
WHEREAS TruOI desires to grant certain licenses and other rights to Licensee with respect to such software and services and Licensee desires to accept the same on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the fees to be paid in connection therewith, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties intending to be legally bound, hereby agree as follows:
1.1. “TruOI Software” shall mean computer-programming code developed by TruOI or an associated company that enables interactive data visualization, data processing and data blending, and any “Enhancements” (as such term is defined below) thereto. The TruOI Software may also include computer-programming code developed by TruOI to integrate with Licensee software, databases and systems, as well as the software marketed as iDashboards.
1.2 “Object Code” means computer programming code in binary form, which is intended to be directly executable by a computer after suitable processing and linking but without the intervening steps of compilation and assembly.
1.3. “CPU” means a single Central Processing Unit within one physical piece of computer equipment. However, one physical piece of computer in a “multi-processor” hardware configuration may have multiple CPUs. For example, a dual-processor computer hardware will be defined as 2 CPUs. And in a “multi-core” hardware configuration, each CPU may be partitioned into multiple cores, each core functioning as a simulated CPU. For example, a dual-processor computer hardware with dual-core architecture will be defined as 4 CPUs.
1.4. “Named User” means an individual person designated by Licensee with an identifiable name who is permitted to use the Software license on a per Named User basis. There may be only one Named User per user license.
1.5. “Intellectual Property Rights” means all worldwide copyright, trade secret, know-how, trademark, service mark and patent rights (including rights in inventions, patent applications and letters patent) and all other intellectual and other property rights in and to the TruOI Software and Documentation and TruOI’s confidential information relating thereto.
1.6. “Licensee’s Facilities” means Licensee’s offices and facilities.
1.7. “Licensee’s Network” means Licensee’s computer network at the Licensee’s Facilities.
1.8. “Licensee Software” means software developed by Licensee that Licensee licenses to third parties.
1.9. “Proprietary Notice” or “Proprietary Notices” means the copyright notices, trademark notices, patent markings, trade secret legends, confidentiality labels and other notices or legends that TruOI shall use or specify from time to time.
1.10. “Bug” or “Bugs” means one or more significant errors in the TruOI Software which prevent the TruOI Software from operating substantially in accordance with the published functional specifications therefor.
1.11. “Bug Correction” or “Bug Corrections” means one or more modifications or additions that when made or added to the TruOI Software either establishes material conformity of the TruOI Software to the published functional specifications or eliminates the practical adverse effect on Licensee of a Bug.
1.12. “New Release” and “New Releases” means one or more new releases, new versions and/or major upgrades of the TruOI Software as such status may be determined by TruOI in its sole discretion.
1.13. “Enhancements” means modifications and minor upgrades made by TruOI to the TruOI Software which do not constitute a New Release as such status may be determined by TruOI in its sole discretion.
1.14. “Maintenance and Support Services” has the meaning set forth in Section 4.
1.15. “Subscription Period” is a fixed length of time with a begin date and an end date during which the Licensee is authorized to use the TruOI Software per the terms of this Agreement.
1.16. “TruOI Map Server” refers to any and all Internet-based servers provided by TruOI that provide images of geographic maps, or parts of geographic maps.
1.17. “Privacy Laws” means the applicable legislation and/or regulation of the protection of identifiable individuals or households, including where applicable the General Data Privacy Regulation (Regulation (EU) 2016/679) (GDPR), the California Consumer Privacy Act (CCPA) and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, binding statutes, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities.
2.1. Subject to the terms, conditions and limitations set forth herein, TruOI hereby grants to Licensee, and Licensee hereby accepts, a limited, nonexclusive, nontransferable, nonassignable license under TruOI’ Intellectual Property Rights to (a) install a licensed copy of the TruOI Software on Licensee’s Network; (b) use the Documentation solely in support of Licensee’s authorized use of the TruOI Software; and (c) make and use one copy of the TruOI Software for nonproductive backup and archival purposes only, subject to Licensee’s obligation to affix and at all times maintain a Proprietary Notice on the media for such backup copy.
TruOI shall have the right to verify that no more than the Maximum Number of Servers of Licensee’s Network use the TruOI Software and no more than the Maximum Number of Users of the TruOI Software are being used by Licensee at any one time.
2.2. The license and all other rights granted Licensee hereunder shall immediately and automatically terminate in the event (a) more than the Maximum Number of Servers of Licensee’s Network use the TruOI Software or more than the Maximum Number of Copies of the TruOI Software are used by the Licensee without TruOI’s prior express written consent as memorialized in a Supplemental License Agreement fully executed by both parties or (b) more than the Maximum Number of Users use the TruOI Software.
2.3. Licensee acknowledges that TruOI or an associated company owns all right, title and interest in and to the TruOI Software, Documentation, Intellectual Property Rights, and all confidential information related thereto and that Licensee shall have only those license rights expressly granted to it hereunder. By way of example only, and without limitation, Licensee does not have the right to and shall not (and shall not permit any other person or entity to), by electronic or by any other means, except to the extent permitted by law, directly or indirectly (a) make a copy of the TruOI Software or Documentation or any part thereof except as expressly provided herein; (b) publish, distribute, rent, lease, sell or otherwise transfer the TruOI Software or any part thereof; (c) remove or obscure any Proprietary Notice from the TruOI Software or Documentation; or (d) reverse engineer, decompile, disassemble, translate or prepare derivative works of the TruOI Software or any part thereof; or (e) modify or merge the TruOI software into another program. Licensee agrees to and shall protect the confidentiality of and not disclose to others any and all confidential and proprietary information embodied in the TruOI Software or Documentation or disclosed in the course of Maintenance and Support Services, including but not limited to the Intellectual Property Rights therein. The confidentiality and non-disclosure obligations set forth herein shall survive the expiration or termination of this Agreement only with respect to any portion of the Confidential Information which itself is, and whose technical and commercial significance is, made conveniently available to the applicable trade or portion of the public by TruOI, is disclosed to Licensee by a third party who did not obtain the same directly or indirectly from TruOI or was known to Licensee (in writing) prior to disclosure to it by TruOI.
2.4. Licensee does not have the right to assign, sublicense or otherwise transfer any of the rights granted it hereunder, and any purported assignment, sublicense or other transfer contrary to the foregoing shall be void and of no effect. TruOI shall have the right to assign this Agreement or any of the rights and obligations hereunder to any successor or any other party.
2.5. TruOI Map Server is not part of the TruOI Software, and the Licensee has the right to make use of the TruOI Map Server ONLY in conjunction with the use of the TruOI Software. Any use of the TruOI Map Server that is not in conjunction with the TruOI Software is expressly forbidden. Licensee agrees that the use of the TruOI Map Server is at the Licensee’s sole risk and that the TruOI Map Server and the images and/or data it provides are provided “as is” and “as available” without warranty, of any kind.
2.6. For all of the data and digital content uploaded by Licensee to any server hosted by TruOI, Licensee will not upload any personal data or confidential data, which may be subject to cross-border data restrictions or Privacy Laws. Licensee will regularly monitor all of the data and digital content uploaded by the Licensee to make sure it does not include any personal data or confidential data. Licensee takes full and sole responsibility for all data and digital content transferred by Licensee to our servers in violation of this agreement.
2.7. All rights not expressly granted to Licensee in this Agreement are reserved by Licensor, and Licensee may not use the Software or Documentation in any manner not expressly authorized by this Agreement. Licensee may use the Software and Documentation for its internal business operations only and not by, or for the benefit of, any third party, nor may the Software be used by service bureau services.
Ownership of TruOI Software
3.1. Licensee acknowledges and agrees that, notwithstanding any provision of this Agreement, TruOI Software is the exclusive property of TruOI or an associated company, and that TruOI owns or has licensed all software used in the TruOI Software.
3.2. Licensee agrees that it shall not challenge in any country or other jurisdiction TruOI’s or an associated company’s ownership of all right, title and interest in any kind or nature in, to, and related to the TruOI Software, any component and/or portion thereof, including any Intellectual Property Rights therein.
3.3. Data Visualization Developments. All technology (including without limitation all inventions, discoveries, techniques, processes, designs, specifications, algorithms, software, interfaces, protocols, know-how and trade secrets) which may be created as Enhancements to or improvements, implementations or derivations of the TruOI Software or based on or made as a result of use of the TruOI Software shall belong to TruOI or an associated company and to the extent that they do not, are hereby assigned to TruOI or to the associated company which developed the underlying software. All Developments hereby are and shall be included in TruOI Software and are and shall be licensed to Licensee according to the terms and conditions in Section 2.
Maintenance and Support Services
4.1. Provided that Licensee is not in default of any of its license obligations, obligations to pay for License and Subscription Fees or other material obligations hereunder, TruOI shall provide the following Maintenance and Support Services to Licensee at no additional charge during the term of this Agreement:
- Telephone and Email Support: TruOI will provide telephone and email support services during TruOI’s normal business hours (8:30am to 5:30pm U.S. Eastern Time) in order to allow Licensee to report problems and seek assistance in the use of the TruOI Software.
- Bug Correction: TruOI will use reasonable diligence to correct verifiable and reproducible Bugs which have been reported by Licensee in accordance with TruOI’s standard reporting procedures and provide Bug Corrections therefor. A Bug Correction, when completed, may be provided in the form of a “temporary fix,” which shall consist of sufficient programming code and operating instructions to implement a Bug Correction. If requested by TruOI, Licensee shall provide a listing of output and any other data or information that TruOI may require in order to reproduce the Bug and the operating conditions under which it occurred or was discovered;
- General Enhancements: From time-to-time TruOI may provide New Releases (set forth in Section 7) to Licensee at no additional charge as part of the Maintenance and Support Services.
- Custom Enhancements: Should the Licensee require any design or functionality enhancements that is not part of current release of the TruOI Software, it will be governed by a separate Professional Services Agreement.
- Use of the TruOI Map Server at no additional charge. There are no specific limitations on the extent to which the Licensee may make use of the TruOI Map Server, however, TruOI reserves the right to limit or block the Licensee’s use of the TruOI Map Server in the event that, in the sole opinion of TruOI, the Licensee’s usage of the TruOI Map Server is excessive.
4.2. TruOI will provide Maintenance and Support Services only with respect to the current release of the TruOI Software and the release immediately preceding the current release. TruOI’s Maintenance and Support Services shall not cover usage of third-party software, including but not limited to, databases, application server software and operating system.
4.3. TruOI’s Maintenance and Support Services shall not, without limitation, cover any problems resulting from: (i) modifications to the TruOI Software not made or authorized by TruOI or (ii) the misuse or improper use of the TruOI Software, or (iii) incompatibilities with third party software.
4.4. TruOI’s Maintenance and Support Services may be used by Licensee only and shall not extend to Licensee’s customers or end users.
4.5. If the Licensed Program is obtained through one of Licensor’s authorized resellers, Licensee shall exclusively contact the authorized reseller to receive technical support.
4.6. When purchased, maintenance coverage begins the date the Licensed Program is first licensed by Licensee, and is renewable on an annual basis pursuant to the terms of this Agreement. Maintenance renewal pricing is calculated at 20% of the then-current software component list price schedule at the time of maintenance renewal, and is a non-refundable service once purchased. In the event that TruOI Software is licensed for a limited time Subscription Period, Support and Maintenance will be included at no additional charge during the Subscription Period.
Term and Termination
5.1. The initial term of this Agreement shall be for the Subscription Period as per the order form. This Agreement shall automatically renew for additional one (1) year period unless terminated as set forth herein. TruOI reserves the right to terminate this agreement at the end of any Subscription Period OR to renegotiate all terms and conditions of the Agreement at its sole discretion before the renewal.
5.2. Upon expiration or any other termination of this Agreement, regardless of the reason:
- All licenses granted hereunder shall terminate;
- Licensee shall promptly cease all use of the TruOI Software, and return all electronic media and any documentation containing the TruOI Software;
- Licensee shall promptly remove the TruOI Software from Licensee Software, from Licensee’s Web Sites, servers and computers;
6.1. TruOI shall deliver a copy of the Licensed TruOI Software OR deliver log-in credentials to access the TruOI Software on a hosted server to Licensee upon receipt of all fees and payments due. Payment obligations are non-cancelable and fees paid are non-refundable.
6.2. Any due payments not received within ten (10) days of the due date shall bear a Late Payment Fee of two percent (2%).
6.3. In the event that any amount payable to TruOI remains unpaid for sixty (60) days, TruOI may, in its sole discretion, terminate this agreement and/or withhold any Maintenance and Support Services including, but not limited to, assistance in the development of Bug Corrections for the TruOI Software.
6.4. In the event that any payment due is collected at law or through an attorney, or under advice therefrom, or through a collection agency, Licensee agrees to pay all reasonable costs of collection, including without limitation, all court costs and reasonable attorney’s fees.
6.5. Licensee shall pay (and TruOI shall have no liability for), all taxes, tariffs, duties and other charges imposed or levied by any government or governmental agency, including, without limitation, any federal, state and local sales, use, value-added and personal property taxes on any amount payable to TruOI in connection with the TruOI Software, hosting fees, Maintenance and Support Services provided hereunder, excluding only income taxes on TruOI’s income.
TruOI shall make each New Release available for license to Licensee while this Agreement is in effect. Upon Licensee’s payment of required fees and acceptance of the New Release, the New Release shall be deemed part of the TruOI Software hereunder.
Disclaimer of Warranties and Limitation of Liability
THE ONLY WARRANTY MADE BY TRUOI WITH RESPECT TO THE TRUOI SOFTWARE IS THAT THE ORIGINAL PHYSICAL MEDIA IN WHICH TRUOI SOFTWARE IS EMBODIED AND WHICH IS DELIVERED BY TRUOI SHALL BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP FOR A PERIOD OF SIXTY DAYS AFTER DELIVERY. LICENSEE’S EXCLUSIVE REMEDY THEREFOR SHALL BE LIMITED TO THE REPLACEMENT OF THE ORIGINAL PHYSICAL MEDIA IF DEFECTIVE. OTHER THAN AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION, THE TRUOI SOFTWARE, THE TRUOI MAP SERVER, DOCUMENTATION, AND MAINTENANCE AND SUPPORT SERVICES ARE ALL PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE TRUOI SOFTWARE IS ASSUMED BY LICENSEE, AND TRUOI ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE TRUOI SOFTWARE OR THE TRUOI MAP SERVER. TRUOI’S OBLIGATION TO CORRECT BUGS IS LIMITED TO THE PROVISIONS OF SECTION 4 OF THIS AGREEMENT AND THE EXISTENCE OR NON-EXISTENCE OF ANY BUGS SHALL NOT MODIFY OR ABROGATE THIS SECTION 8. IN NO EVENT SHALL TRUOI’S AGGREGATE LIABILITY TO LICENSEE (INCLUDING LIABILITY TO ANY PERSON(S) OR ENTITY(IES) WHOSE CLAIM OR CLAIMS ARE BASED UPON OR DERIVED FROM A RIGHT TO RIGHTS CLAIMED BY LICENSEE), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID TO TRUOI BY OR ON BEHALF OF LICENSEE HEREUNDER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT SHALL TRUOI BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR THE INABILITY TO USE THE TRUOI SOFTWARE, EVEN IF TRUOI HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING. TRUOI SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE TRUOI SOFTWARE, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING TRUOI SOFTWARE, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE TRUOI SOFTWARE OR DATA, CLAIMS BY THIRD PARTIES OR OTHER SIMILAR COSTS. THE REMEDIES AND WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR IMPLIED. NO AGENT OR EMPLOYEE OF TRUOI IS AUTHORIZED TO MAKE ANY MODIFICATION OR ADDITION TO THE TERMS OF THIS AGREEMENT INCLUDING BUT NOT LIMITED TO THIS SECTION 8. LICENSEE ACKNOWLEDGES THAT ANY VERBAL OR WRITTEN STATEMENT(S) MADE BY AN AGENT OR EMPLOYEE OF TRUOI CONTRARY TO THIS SECTION 8 SHALL NOT CONSTITUTE AN AMENDMENT OF OR TO THIS AGREEMENT.
Authority to Enter into Agreement
Each party represents and warrants to the other party that it has the right to enter into this Agreement and assume the obligations hereunder, and that the individual who purchases TruOI Software on its behalf is authorized to bind the party to this Agreement.
Indemnification & Equitable Relief
Licensee shall defend TruOI against any Claim made or brought against TruOI by a third party alleging that Licensee’s data, use of our servers, or use of the TruOI software in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable State, Federal, and/or International laws, and shall indemnify TruOI for any damages finally awarded against, and for reasonable attorney’s fees incurred by TruOI in connection with any such Claim; provided, that TruOI (a) promptly gives Licensee written notice of the Claim; (b) give Licensee sole control of the defense and settlement of the Claim (provided that Licensee may not settle any Claim unless the settlement unconditionally release TruOI of all liability); and (c) provide to Licensee all reasonable assistance.
Because of the unique and proprietary nature of the TruOI Software and Intellectual Property Rights, it is understood and agreed that TruOI’s remedies at law may be inadequate and that TruOI may be entitled to equitable relief, including without limitation injunctive relief, specific performance or other equitable remedies in addition to all other remedies provided hereunder or available to TruOI at law or equity.
TruOI may assign this Agreement to a successor corporation or to a company which purchases a substantial portion of Company’s assets and this Agreement shall inure to the benefit of Company, its successors and its assigns.
Either Party shall not directly or indirectly solicit for employment or hire any Employee or Contractor while such person is employed or Contracted by the other party. The non-solicitation period will be for 12-months starting on the earlier of: (i) termination of the Employee’s employment or Contractor’s contract with the other party, or (ii) termination or expiration of this Agreement.
13.1. Licensee agrees to allow Licensor to use Licensee’s company name in Licensor’s customer lists.
13.2. If any exhibits, they are incorporated in this Agreement to the same extent as if fully set forth herein. All references to particular Sections are to Sections contained in this Agreement. To the extent any provision, portion or extent of this Agreement is determined to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed or deleted here from or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. The captions in this Agreement are inserted for convenience of reference only and do not constitute a part of the Agreement and shall not modify or limit any of the terms thereof.
13.3. This Agreement (a) constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes any prior agreements or understandings whether written or oral, (b) may not be amended except in a writing executed by all parties clearly identifying such writing as an amendment to this Agreement, and (c) shall be governed by and construed and enforced in accordance with the laws of the State of Michigan (without reference to its rules relating to conflicts of laws) applicable to agreements made and to be performed entirely within Michigan. The parties agree, to the maximum extent permitted by law, that the venue for any litigation or dispute arising out of this Agreement shall be Oakland County and State of Michigan and that the Federal and State courts therein shall have jurisdiction over the subject matter and the parties.
13.4. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
13.5. Licensor is not responsible for failure to fulfill any of its obligations under this Agreement due to causes beyond its reasonable control.
13.6. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
13.7. Nothing contained in this Agreement shall be deemed to imply or constitute that either party is the agent or representative of the other party, or that both parties are joint ventures or partners for any purpose.
End of Agreement