inteVISTA Professional
inteVISTA Enterprise
inteVISTA LMS
inteVISTA GO
inteVISTA Sell
INTESOLV inteVISTA ON-PREMISE SOFTWARE LICENSE AGREEMENT
IMPORTANT: THIS AGREEMENT (or “EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“CUSTOMER”) AND INTESOLV,INC., HEREINAFTER (“InteSolv”}. BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND IN ACCORDANCE WITH ITS REFUND POLICIES.
BY RECEIVING THIS PRODUCT YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE TERMS AND AGREEING TO BE BOUND BY THE TERMS. IF YOU ARE AN INDIVIDUAL, THEN YOU ARE CONFIRMING ACCEPTANCE ON YOUR BEHALF. IF YOU ARE A REPRESENTATIVE OF A COMPANY, THEN YOU ARE CONFIRMING ACCEPTANCE ON THAT COMPANY’S BEHALF AND CONFIRMING THAT YOU HAVE AUTHORITY FROM THE COMPANY TO ORDER THIS SERVICE AND TO BIND THE COMPANY TO THESE TERMS. YOU ARE LEGALLY RESPONSIBLE FOR EACH USER ACCESSING THE SOFTWARE OR THE APPLICATIONS BY MEANS OF, OR BECAUSE OF, YOUR ACCOUNT.
1. Definitions
“Bundle” means the Software, together with such other InteSolv software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.
“inteVISTA” means the InteSolv software product that is a product SKU associated with the inteVISTA suite, together with such other InteSolv software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.
“inteVISTA LMS” means the specific inteVISTA product named “inteVISTA LMS”, which is software deployed as a hosted or on-premise service. The service integrates with CDN Technologies, such as Adobe Connect, to organize and offer learning content, provide eCommerce functionality, generate certificates, display myLearning, and deliver an administrative interface.
“eCommerce” means an online transaction system that provides for the collection of monies by a 3rd party payment gateway and merchant processor with deposits made directly to Client designated bank accounts.
“Acrobat Connect” means the Acrobat Connect Enterprise Server Software that is a product SKU associated with Acrobat Connect Enterprise Server Software from Adobe Systems, Incorporated, together with such other Adobe software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.
“Not For Resale (NFR) Version” means a version, so identified, of the Software to be used to review and evaluate the Software, only.
“InteSolv” means InteSolv,Inc. and its licensors, if any.
“Software” means only the InteSolv software program(s) and third party software programs, in each case, supplied by InteSolv herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.
“Trial Version”, if offered, means a version of the Software, so identified, that may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
2. Fees
You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i)fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. Any usage fees unpaid at cancellation will be immediately due and payable.
3. Non-Payment & Suspension
In addition to any other rights granted to InteSolv herein, InteSolv reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged during any period of suspension. If you or InteSolv initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that InteSolv may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
InteSolv reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that InteSolv has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
4. Changes
To the Service Offerings. InteSolv may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. InteSolv will notify you of any material change to or discontinuation of the Service Offerings.
To the APIs. InteSolv may change, discontinue or deprecate any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).
To the Service Level Agreements. InteSolv may change, discontinue or add Service Level Agreements from time to time.
5. License Grants
The licenses granted to Customer in this Section 2 are subject to the terms and conditions set forth in this Agreement. In the event Customer fails to comply with any terms of this Agreement, InteSolv may terminate the license, Customer must destroy all copies of the Software, and all other rights of both parties and all other provisions of this EULA surviving any such termination. The grants set forth in this Section apply to all Software except where it is stated that a grant is applicable only to specific Software products identified by name.
InteSolv grants the Customer a one-year, non-exclusive, non-transferable, limited right and license to install and use this Program solely for internal business purposes. All rights not specifically granted under this Agreement are reserved by InteSolv. This Program is licensed, not sold. This license confers no title or ownership in this Program and should not be construed as a sale of any rights in this Program.
Customer may extend the License term of this Agreement for additional periods of one year each (each, a “Maintenance” Term”) subject to payment of the License Fee, in advance. If Customer desire’s to renew the term of this Agreement Customer will provide InteSolv with notice of intent to renew at least 60 days (or such other shorter period of time as agreed by the Parties) prior to the expiry of the Initial Term or Renewal Term, as applicable.
InteSolv acknowledges that Customer may wish to purchase on-site or additional services from InteSolv to assist Customer with Customer use of the Licensed Software but which are not part of the Maintenance provided for the Maintenance Fees. Therefore, if Customer wishes to have InteSolv provide to Customer, services not covered by Maintenance (such as remote or on-site implementation, database administration, system, network or network security configuration, software customization or training in connection with your use of the Licensed Software) and provided InteSolv determines that it is able to provide such services to Customer when requested, then Customer will be required to enter into a InteSolv Professional Services Agreement or other agreement required by InteSolv and containing InteSolv’s standard terms and conditions for such services and Customer will be required to pay to InteSolv the current rates charged by InteSolv for such services at the time the services are performed. Any changes to the application under any related scope changes will result in increased maintenance fees to ensure forwards compatibility and alignment with product path.
Server-Based Software License: Subject to the terms and conditions of this Agreement, InteSolv hereby grants Customer the right and license to install a single portal instance of the Software on one or more servers, provided that the total number of servers may not exceed the number of portal instances for which Customer has purchased licenses. A license for the Software may not be shared, installed on different servers, or used concurrently on different servers unless a license has been purchased for each portal instance on which the Software is installed.
Trial Version Software License: Subject to the terms and conditions of this Agreement, InteSolv hereby grants Customer the right and license to install the Software on a single computer and use the Software only to review, demonstrate and evaluate the Software for a limited time period. The Software may not be shared, installed on different computers, or used concurrently on different computers. This license applies only to Software identified as a Trial Version.
Test Use License: Subject to the terms and conditions of this Agreement, InteSolv hereby grants Customer the right and license to install and use the Software on one or more non-production servers, provided however, that such use of the Software on such non-production servers is restricted to testing or quality assurance procedures with respect to the Software.
General License Grants. Customer may make one copy of the Software in machine-readable form solely for backup purposes, provided the copy must include all copyright notices and any other proprietary legends on the original Software. License rights granted under this EULA are non-exclusive.
6. License Restrictions. Customer agrees to and accepts the following restrictions, except to the extent any such restriction is contrary to applicable law.
Customer shall not alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
Customer shall not rent, lease, or sublicense the Software. Customer shall not use, or permit the use of, the Software on a timeshare or service bureau basis, and shall not host, on a subscription basis or otherwise, the Software.
Other than with respect to a Trial Version or a Not For Resale Version of the Software, if offered, Customer may permanently transfer all of its rights under this Agreement only as part of a sale or transfer, provided Customer retains no copies of the Software, transfers all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which Customer is upgrading. If the copy of the Software is licensed as part of the Bundle, the Software shall be transferred only with and as part of the sale or transfer of the whole Bundle and not separately. Customer may not sell or transfer any Software purchased under a volume discount. Customer may not sell or transfer any Trial Version or Not For Resale Version of the Software.
Other than as expressly set forth with respect to Sample Application Code (as defined below, Customer shall not modify the Software or create derivative works based upon the Software.
Trial Version Restrictions. If offered, unless otherwise provided herein, Customer shall not (a) in the aggregate, install or use more than one copy of the Trial Version of the Software, (b) download the Trial Version of the Software under more than one username, (c) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (d) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without InteSolv’s prior written consent, (e) use the Trial Version for any application deployment or ultimate production purpose, or (f) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license.
Not for Resale Version Restrictions. If offered, Customer shall only use the Not for Resale Version of the Software to review and evaluate the Software.
Customer shall not access or use the Software to design, develop, or market any application having the same primary function as the Software.
Customer will receive the Software in digital form via the internet and may transfer the software to another medium for purposes of installing the software. Customer shall use only the medium that is appropriate for the computer on which the Software is to be installed.
The license of the Bundle, if applicable, is licensed as a single product and none of the products in the Bundle, including the Software, may be separated for installation or use on more than one computer.
7. Upgrades and Bundles. If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to Customer on a license exchange basis. Customer agrees that any installation and use of such copy of the Software terminates any earlier EULA and terminates Customer’s right to continue to use or transfer to another person the earlier version of the Software. If this copy of the Software is licensed as part of the Bundle, and Customer has a prior license to the same version of the Software, and the Bundle was licensed to Customer with a discount based, in whole or in part, on Customer’s prior license to the same version of the Software, the Software is provided to Customer on a license exchange basis. Customer agrees, by installation and use of this copy of the Software, to voluntarily terminate the EULA with respect to such prior license to the Software and that Customer will not continue to install or use such prior license of the Software or transfer it to another person or entity.
8. Ownership; InteSolv Intellectual Property. Except as expressly provided in this Agreement, InteSolv and its suppliers and licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications may develop), and all copies thereof. All rights not specifically granted in this Agreement, including U.S. and International Copyrights, are reserved by InteSolv and its suppliers and licensors. InteSolv and other trademarks contained in the Software are trademarks or registered trademarks of InteSolv, in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. Customer may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize Customer to use InteSolv’s or its licensors’ names or any of their respective trademarks.
9. Limited Warranty and Disclaimer
InteSolv warrants that, for a period of ninety (90) days from the date of delivery: (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the digital media on which the Software is furnished will be free from defects in materials and workmanship under normal use. EXCEPT AS PROVIDED IN THE FOREGOING LIMITED WARRANTY, INTESOLV PROVIDES NO OTHER WARRANTIES FOR THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY InteSolv, ITS DISTRIBUTORS, RESELLERS, AGENTS OR EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY OR IN ANY WAY CHANGE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.
Provided that any non-compliance with the above warranty is reported in writing to InteSolv no more than ninety (90) days following delivery of the Software, InteSolv, at its option, will (a) supply a replacement copy of the Software that substantially conforms to the documentation, (b) provide a replacement for defective media, or (c) refund the purchase price for the non-compliant Software. Adobe shall have no responsibility under this warranty if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a InteSolv-recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE.
10. Intellectual Property Indemnity.
InteSolv will defend at its expense and indemnify and hold harmless Customer from any third party action brought against Customer based on a claim that the InteSolv software or any part thereof, when used within the scope of this Agreement, infringes or misappropriates a third party’s United States copyright, trademark, or trade secret, and InteSolv will pay any settlements and damages awarded to such third party and the reasonable out-of-pocket costs incurred directly by Customer in connection with defending such claim; provided, the foregoing obligation shall be subject to Customer notifying InteSolv promptly in writing of any claim, giving InteSolv the exclusive control of the defense and settlement thereof, and providing all reasonable assistance in connection therewith.
InteSolv shall have no liability for any claim arising out of or relating to (i) modifications to the InteSolv software other than modifications made by InteSolv, (ii) any combination of InteSolv software with non- InteSolv equipment, systems, programs or data, where such InteSolv software alone would not have given rise to the claim, (iii) continued use of any InteSolv software for which InteSolv has provided Customer with modifications or substitute software if use of such modifications or substitute software would have prevented the claim.
In the event that the InteSolv software is, or in InteSolv’s sole opinion is likely to be, subject to a claim of infringement or misappropriation, InteSolv at its option may either (i) modify the InteSolv software so that it becomes non-infringing, (ii) replace the InteSolv software with non-infringing software with substantially similar functionality, (iii) obtain a license with respect to the applicable third party intellectual property rights, or (iv) terminate this Agreement and refund to Customer an amount equal to the fees Customer has paid to InteSolv under this Agreement as of the date of termination for the software that was subject to the claim of infringement or misappropriation.
11. Limitation of Liability
IN NO EVENT SHALL INTESOLV, ITS AGENTS OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL OR THE LIKE), ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE TERMINATION THEREOF, OR OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE HOWEVER CAUSED AND BASED ON WHATEVER THEORY, WHETHER BASED ON, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), THE FAILURE OR ASSERTED FAILURE OF A PARTY TO PERFORM ITS OBLIGATIONS HEREUNDER, PRODUCT LIABILITY, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, EVEN IF INTESOLV, ITS AGENTS, ITS SUPPLIERS OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL INTESOLV’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY OWED AND ACTUALLY PAID TO INTESOLV BY CUSTOMER FOR THE SOFTWARE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE TIME WHEN INTESOLV’S LIABILITY IS ESTABLISHED.
The Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability set forth above are fundamental elements of the basis of the Agreement between InteSolv and Customer. InteSolv would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability inure to the benefit of InteSolv’s licensors.
12. Government Requirements. Customer will comply with, and cause end users of the Software to comply with, all applicable export and import laws and regulations of the U.S. Department of Commerce or other U.S. or foreign agency or authority, and not export, import or allow the export or import of any InteSolv product in violation of any such laws or regulations. This Software and the documentation are provided with “RESTRICTED RIGHTS” applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: InteSolv,Inc., 315 West Oak Street, Visalia, CA 93291.
13. Audits. Customer agrees to keep all usual and proper records and books of account and all usual and proper entries relating to the Software. Records and books of account include, but are not limited to, information regarding the number of Software units manufactured or distributed. InteSolv may cause an audit and/or inspection to be made of the applicable records and facilities in order to verify compliance with the terms of this Agreement. Any such audit shall be conducted by an auditor selected by InteSolv. Any audit and/or inspection shall be conducted during regular business hours at Customer’s facilities with advance notice of at least 10 days. Customer agrees to provide InteSolv’s designated audit or inspection team access to the relevant Customer records and facilities and prompt and reasonable cooperation in the audit. Customer shall pay InteSolv the full amount of any underpayment revealed by the audit plus interest from the date such payments were due under the terms of this Section. Notwithstanding the foregoing, if such audit reveals an underpayment by Customer of more than five percent (5%) for the period covered by the audit report, Customer shall pay all of the fees and costs associated with such audit and the amount underpaid with interest from the date such payment was due pursuant to this Section. This provision does not limit any additional rights and remedies at law or in equity that InteSolv may have due to unauthorized use of the Software.
14. Third Party Software. The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions can be obtained by contacting InteSolv directly and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
15. Applicable Law; Choice of Forum. This Agreement shall be governed by and construed under the laws of the State of California (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to conflict of laws principles. Unless waived by InteSolv in writing for the particular instance (which InteSolv may do at its option), the exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Tulare County, California, United States of America. Both parties consent to the personal jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by law.
16. General. Customer may not assign this Agreement or any rights or obligations hereunder without the prior written consent of InteSolv, with such consent not to be unreasonably withheld. Any attempted assignment without InteSolv’s prior written consent shall be null and void. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any term or breach of this Agreement shall constitute a waiver of any other term or any prior, concurrent, or subsequent breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. A party’s failure to enforce a term of this Agreement shall not be deemed a waiver of that term or any other term of this Agreement. This Agreement shall constitute the entire agreement between the parties with respect to its subject matter and hereby merges all prior and contemporaneous communications with respect to its subject matter, both written and oral. This Agreement shall not be modified except by a written agreement signed on behalf of the parties by their respective duly authorized representatives. All notices required under this Agreement shall be directed to: InteSolv,Inc., 8303 N. Mopac Expy Ste C240, Austin, TX 78759 Attention: General Counsel.