InFocus License Agreement
This License Agreement (“Agreement”) is made and entered into as of ________________ between Clearview Software, Inc. (“Clearview”) and Client (“Licensee” or “Client”) as listed on page 12 of this Agreement.
Article I. Documentation
- Section 1.01 Documentation for InFocus will be provided either in hard copy or via the Internet (at Clearview’s discretion) for no additional charge.
Article II. Delivery and Installation
- Section 2.01 The InFocus Software shall be made available for download via the Internet.
- Section 2.02 When Self-Hosted, Licensee is responsible for installation of the server portion of the Software on Licensee’s equipment. Licensee’s equipment means any equipment the Licensee uses to host the server components of the Software, be it owned, leased, rented, or otherwise utilized.
- Section 2.03 When Self-Hosted, Licensee is responsible for installation of all upgrades, patches, hot-fixes, updates, or any other software modifications provided by Clearview for the Software. When Licensee is a Cloud Client, Clearview will install all upgrades and patches. Licensee will still be responsible for any updates that need to be applied via Software.
Article III. Payment and Taxes
- Section 3.01 Licensee will provide Clearview with an email address at which all invoices will be delivered. Licensee shall pay all invoices within thirty (30) days of the specified invoice date (“due date”). All fees not paid within ten (10) days of the due date shall bear interest at the rate of one percent (1%) per month, or at the highest rate allowed by law, whichever is less, from the due date until paid. The fees set forth in this Agreement are exclusive of any sales, use personal property, value added and goods/services taxes. Where applicable, such taxes shall be billed to Licensee as separate items on Clearview’s invoice, and Licensee shall be liable for payment of such taxes (other than taxes based on Clearview’s income).
Article IV. Confidential Information of Licensee
- Section 4.01 During the term of this Agreement, Clearview will regard as confidential all information related to the business of Licensee and Licensee’s clients that may be obtained by Clearview from any source as a result of this Agreement and use the same degree of care, but no less than a reasonable degree of care, to protect such information as Clearview uses to protect its own confidential information. Clearview’s obligation of confidentiality shall not apply to information which is: (i) already known to Clearview at the time of the disclosure; (ii) obtained by Clearview from a third party without restrictions and who is not under obligation to the other party with respect thereto; (iii) in the public domain; or (iv) independently developed by Clearview.
Article V. Excusable Delays
- Section 5.01 In no event shall either party be liable for any delay or failure to perform hereunder, which delay or failure is due to cause beyond the control of said party, including, but not limited to, acts of God, acts of public enemy terrorism, civil disturbance, acts of any government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusual severe weather conditions.
Article VI. Client List
- Section 6.01 Licensee, when asked, may agree to be included as a reference on a list of Clearview clients.
Article VII. Publicity
- Section 7.01 Either party, when asked, may agree (in any press release advertising or other publicly-disseminated materials) be permitted to refer to the other party, the existence of this Agreement, the software licensed hereunder, and Licensee’s reasons for licensing the Software. Before disseminating this information publicly, the disclosing party shall review the factual content of the foregoing; Licensee shall not publicly disclose any pricing, discount or payment terms without Clearview’s prior written consent.
Article VIII. Limitation of Liability
- Section 8.01 Except for Intellectual Property (“IP”) indemnification, Clearview’s total liability on any claim of any kind for any loss or damage arising out of, resulting from or in connection with (i) this Agreement or the performance or breach thereof or (ii) the use or performance of the Software shall not exceed the amount of the license fee paid for the Software. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THIS POSSIBILTY OR LIKELIHOOD OF SUCH DAMAGES.
Article IX. Binding Effect
- Section 9.01 This Agreement shall be binding upon the parties and their respective legal successors and permitted assigns.
Article X. Assignment
- Section 10.01 Licensee may not assign or transfer this Agreement or any right or obligation hereunder without Clearview’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. In the event that Licensee is fully acquired, Licensee must notify Clearview in writing. Upon notice and completion of said acquisition, Clearview shall allow the assignment or transfer of this Agreement and any right or obligation hereunder. Any assignment made in violation of this provision shall be void. For the purpose hereof the transfer or vesting of Licensee’s rights in this Agreement to or in a third party by operation of law, including without limitation by way of a merger or consolidation, shall be deemed an assignment requiring Clearview’s prior written consent.
Article XI. Severability
- Section 11.01 If any provision hereof is found by a tribunal of competent jurisdiction to be illegal or unenforceable, then such provision in hereby waived to the extent, necessary for the Agreement to be otherwise enforceable.
Article XII. Notices
- Section 12.01 All notices or other written communications required or permitted to be given or sent pursuant to this Agreement shall be sent by overnight, registered or certified mail (return receipt requested) and addressed to the parties at the addresses set forth in the signature block below (or such other address as may be specified by like notice).
Article XIII. Governing Law
- Section 13.01 The Agreement is made under and shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without references to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Article XIV. Disputes
- Section 14.01 Licensee (i) agrees that it may bring a cause of action relating in whole or in part to this Agreement only in either a state court located within Campbell County, Virginia or the United States District Court for the Eastern District of Virginia, (ii) agrees that it may not initiate any such cause of action against Clearview in a court located in any state other than Virginia and (iii) specifically waives any right it may otherwise have to initiate any such cause of action against Clearview in a court located in any state other than Virginia. Licensee further agrees that it is subject to personal jurisdiction in the Commonwealth of Virginia with respect to any such cause of action that relates in whole or in part to this Agreement, specifically including any such cause of action that Clearview may bring against the Licensee. All parties agree that venue for any cause relating in whole or in part to this Agreement shall be properly laid in the Virginia state courts located in Campbell County, Virginia and in the United States District Court for the District of Virginia. Notwithstanding the foregoing, Clearview may, in its sole discretion, bring an action against Licensee in any other jurisdiction in which proper jurisdiction over Licensee may otherwise be obtained.
Article XV. Entire Agreement
- Section 15.01 This Agreement together with the schedules and attachments identified herein contain the entire agreement between Licensee and Clearview relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations relating to the subject matter hereof.
Article XVI. Modifications
- Section 16.01 No modifications or amendment to this Agreement will be binding unless in writing and signed by a duly authorized representative of each party.
- Section 17.01 A failure or delay of either party to this Agreement to enforce at any time any of the provisions of this Agreement, to exercise any option which is herein provided or to require at any time performance of any of the provisions hereof shall in no way be constructed to be a waiver of any provisions of this Agreement.
Article XVIII. License
- Section 18.01 Clearview hereby grants a non-exclusive, non-transferable (except as described in Article X), perpetual license to use the software, in a machine-readable form, together with the Documentation in accordance with the terms of this agreement.
- Section 18.02 Licensee shall not (i) use the software or the documentation in the operation of a service bureau for any third party not an Affiliate, (ii) make copies of the software or documentation except as otherwise permitted hereby or as necessary to use the software and documentation in accordance with this agreement, (iii) reverse engineer, disassemble to reverse compile the software, (iv) sell, let for hire, sublicense, distribute, give away or otherwise supply to a third party any of the software or documentation, (v) use the software or documentation to create any computer software program or user documentation that is substantially similar to the software or documentation, (vi) permit the software to be used for more licensee employees than the applicable number of employees specified in a relevant Clearview invoice.
- Section 18.03 Licensee may modify the Documentation to the extent necessary to reflect more closely Licensee’s operations. Clearview shall retain all rights in any such modified Documentation.
- Section 18.04 Licensee may copy the Software on a mirrored or replicated server for the sole and exclusive purpose of optimizing the performance of the Software over a Local Area Network, Wide Area Network, or Metropolitan Area Network.
Article XIX. Disaster Recovery
- Section 19.01 In the event that Licensee notified Clearview in writing that Licensee has a bona fide disaster recovery plan with respect to some or all the computer software programs used in its operations, Licensee may make one copy of the Software and Documentation for archival purposes and use such copy on a server at a location other than the Licensee location(s) specified in this Agreement, such other location to be owned or controlled by Licensee or Licensee’s disaster recovery vendor.
- Section 19.02 Such copy of the Software or Documentation shall be used only (i) for testing the plan’s procedures and effectiveness or (ii) subsequent to the occurrence of an actual disaster during which Licensee cannot operate the Software in a production environment.
- Section 19.03 Any copies made of the Software or Documentation pursuant to this section shall contain Clearview’s proprietary and/or copyright notice(s).
Article XX. Terms and Termination
- Section 20.01 The effective date of this Agreement shall be the date of Licensee’s initial use or installation (whichever is sooner) of the Software and its terms are perpetual, unless terminated as provided in this agreement. Use is defined as any interaction with the software after which point the Licensee has paid for said software.
- Section 20.02 Licensee may terminate this License at any time by destroying all copies of the Software and Documentation. Clearview may terminate this License upon thirty (30) days written notice to the Licensee, if Licensee fails to comply with any of the material terms and conditions of this agreement and if such failure to comply is not corrected within the said thirty (30) day period.
- Section 20.03 Upon termination of this License for any reason, Licensee shall cease, and shall return or destroy all copies of the Software and Documentation. Within thirty (30) days after the termination of this license, a corporate officer of Licensee shall execute a statement certifying that Licensee has fully complied with the terms of this section and acknowledging that all rights to use the Software and Documentation have been terminated and that any further use of the Software or Documentation is unauthorized and would be in violation of Clearview’s rights therein.
- Section 20.04 Termination of this License shall not relieve Licensee of its obligations to pay any amounts then due Clearview and shall not entitle Licensee to a refund of any amounts paid under this agreement.
Article XXI. Ownership
- Section 21.01 Clearview and/or its licensors own all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and Documentation.
Article XXII. Confidentiality
- Section 22.01 The Software and Documentation are confidential and proprietary information of Clearview and/or its licensors. Licensee agrees to take adequate steps to protect Software from unauthorized use or disclosure.
Article XXIII. Warranty
- Section 23.01 Clearview warrants that the Software will operate in substantial accordance with the applicable Documentation for a period of one hundred twenty (120) days from the execution of this Agreement (“warranty period”), when the Software is used in accordance with the Documentation. This warranty does not apply to errors or malfunctions caused by (i) malfunction of Licensee’s equipment, (ii) software not licensed from Clearview, (iii) abnormal use or (iv) any other cause not directly attributable to Clearview.
- Section 23.02 If during the warranty period, the licensee believes that the Software is not substantially performing in accordance with the Documentation, Licensee will immediately notify Clearview in writing and describe with specificity any such non-performance and will provide a listing of output and such other data as may be required by Clearview to reproduce the operating conditions as existed when non- performance occurred.
- Section 23.03 Clearview warrants that no portion of the Software shall contain at the time of delivery any “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other routine, device or undisclosed feature designed to (i) disable, damage, or erase the Software or data, or (ii) perform any other similar actions that would preclude full use of the Software by Licensee.
- Section 23.04 Clearview warrants that Software, when used in accordance with that Documentation, shall be able to accurately process date related data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and twenty-first centuries, including leap year calculations, provided that any other software not licensed from Clearview used in combination with the Software properly exchanges date data with it.
- Section 23.05 Licensee’s exclusive remedy and Clearview’s sole liability under this warranty will be for Clearview (i) to use reasonable efforts to correct such defects and supply Licensee to corrected version of the Software as soon as reasonably practicable after Clearview has been notified of such defects, or (ii) if correction, or replacement is not reasonably achievable by Clearview, to refund the license fee paid upon return of the Software. Defects do not include errors resulting from Data Transfer, lack of anticipated features, or any other functionality that performs according to documentation but not Licensee’s expectation. In the event errors arise due to Data Transfer, the offending party will bear the cost of correction. For example, if the Licensee provides invalid specification or decides afterward to change the import specification, the Licensee would be the offending party.
- Section 23.06 The warranties set forth herein are void if Licensee or any third party modifies or changes the Software in any way beyond the scope of the customization options contained in the Software. In order to receive and maintain this warranty, Licensee must (i) use the Software in accordance with the Documentation; (ii) use the Software on the hardware and with the operating system for which it was designed; and (iii) use only qualified personnel to operate the Software.
- Section 23.07 Clearview will not be required to maintain compatibility between the Software and any other software (except the Third Party Software), including, but not limited to, versions of Third Party Software other than those specified in this Agreement. Should Third Party Software specified in this Agreement change after this agreement, Clearview will no longer be required to maintain compatibility.
- Section 23.08 Clearview does not warrant that the functions contained in the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free.
Article XXIV. Disclaimer of Warranties
- Section 24.01 EXCEPT AS SET FORTH IN ARTICLE VIII ABOVE, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW.
Article XXV. Infringement
- Section 25.01 Clearview agrees to defend, indemnify and hold harmless Licensee from and against any action based on a claim alleging that the Software infringes a patent, copying or trade secret of any third party, and Clearview shall indemnify Licensee against all costs, expenses and damages arising from any such action; provided however, that (i) Licensee shall have given Clearview prompt written notice of such action, (ii) Licensees shall cooperate with Clearview in the defense and settlement thereof and (iii) Clearview shall have control of the defense of such action and any settlement or compromise thereof.
- Section 25.02 If a temporary or a final injunction is obtained against Licensee’s use of the Software by reason of an infringement of the patent, copyright or trade secret, Clearview will, at its option and expense, either (i) procure for Licensee the right to continue using the Software; (ii) replace or modify the Software so that it no longer infringes such patent, copyright or trade secret, so long as the utility of performance of the Software is not adversely affected by such replacement or modification; or (iii) terminate this Agreement and all licenses granted hereunder and return the amount paid by the Licensee for the Software license.
- Section 25.03 Clearview shall have no liability to Licensee for any infringement action or claim that is based upon or arises out of the modification of the Software by Licensee or any third party or the use of the Software or any portion thereof in combination with any other equipment or software in the event that, but for such modification or use, the claim or infringement would not lie.
- Section 25.04 THIS ARTICLE STATES CLEARVIEW’S ENTIRE OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
Article XXVI. Export Regulations
- Section 26.01 The Software, including technical data relating thereto, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import the Software.
Article XXVII. U.S. Government Rights
- Section 27.01 If Licensee is acquiring the Software and the accompanying Documentation, on behalf of the U.S. Government, the Software and accompanying materials are deemed to be “commercial computer software” and “commercial computer software documentation” or “restricted computer software” as those terms are defined in the Federal Acquisition Regulation (“FAR”), and the Government shall have only those rights specified in this Agreement and, if applicable, the clause entitled “Commercial Computer Software License (Dec 2007)” at FAR 52.227-19. The Software is an unpublished work with all rights reserved under the copyright laws of the United States.
Article XXVIII. Maintenance Program / Cloud Fees
- Section 28.01 The maintenance program for self-hosted clients begins at purchase. A cloud client’s fees begin at enrollment. Any prepayment is non-refundable and cannot be deferred.
Section 28.02 During any period for which Licensee has paid the required fee, Clearview shall provide Licensee:
(a) All upgrades, modifications, improvements, enhancements, extensions, and other changes to the Software, which are generally made available to other customers of Clearview.
(b) Corrections of all Defects in the Software as described herein;
(c) Telephone support as described herein;
(d) Access to Internet support, including a user searchable knowledgebase and ticket entry.
Article XXIX. Defect Correction
- Section 29.01 When Licensee reports a suspected Defect in the Software to Clearview using the Clearview hotline or the Internet, Clearview shall attempt, based upon information provided by Licensee, to recreate the suspected Defect. If the Defect is confirmed Clearview shall use commercially reasonable efforts to provide Licensee a Correction. For the purpose hereof a “Defect” is a material failure of the Software to operate substantially in accordance with the applicable user guides andreference manuals, and a “Correction” includes, without limitation, workarounds, support releases, hot-fixes, correction scripts, component replacements, patches and/or documentation changes, as Clearview deems appropriate.
- Section 29.02 Clearview shall not be responsible for correcting Defects in any versions of the Software other than the most recent release of the Software, provided that Clearview shall continue to support the most prior release superseded by recent releases for 1 year to allow Licensee to implement the newest release.
- Section 29.03 Licensee agrees to implement within a reasonable time all Corrections provided by Clearview hereunder.
- Section 29.04 Defect correction does not apply to any work, including without limitation, programming, report, script, add-on, application, or action that is not generally available within the Software.
Article XXX. Telephone Support
- Section 30.01 Clearview shall provide telephone support so as to allow Licensee’s designated support contact to report problems and to seek assistance in the use of the Software during Clearview’s standard telephone support hours of operation as established from time to time and listed on Clearview’s website.
- Section 30.02 Clearview shall return support calls within a commercially reasonable time, normally within two business days after receipt of Licensee’s call. During this call back, Clearview will either (i) resolve the problem or provide the requested assistance or (ii) provide Licensee with an estimate as to when such resolution of assistance will be available.
Article XXXI. Excluded Items
- Section 31.01 As part of its support obligations, Clearview shall not be obligated to:
(a) Provide telephone assistance (beyond an initial telephone call) or consulting time relating to problems, errors or malfunctions caused by (i) malfunction of the computer system and communication network on which Licensee has installed and is using the Software, (ii) software not licensed pursuant to this Agreement, (iii) any use of the Software in disregard of any known adverse consequences, including without limitation the failure of user to make appropriate backups, warning messages, and any other cause not attributable to Clearview;
(b) Provide extensive training that would normally be provided in formal training classes; or
(c) Perform consulting services that would normally be provided at Licensee’s business location.
- Section 31.02 If, after Clearview notifies Licensee that a problem, error or malfunction, for which Licensee has requested telephone or other support, is not covered by the maintenance program, and Licensee requests Clearview to continue to provide telephone assistance or consulting services to correct the problem, error or malfunction, time relating to such assistance and services, and any other consulting services that Licensee may request, will be charged to Licensee at Clearview’s current standard hourly rates. Determination of the underlying cause of error will lie solely with Clearview.
Article XXXII. Termination of Support
- Section 32.01 Licensee agrees to subscribe to the maintenance program but may terminate the maintenance program (without terminating the License to the use of the Software) providing Clearview with 30 days written notice prior to the commencement of the next scheduled maintenance program charge.
- Section 32.02 Clearview may suspend providing the maintenance program, if Licensee fails to pay the required maintenance program fee or any other amount owed under this Agreement and if such failure is not corrected within the thirty (30) days of the outstanding payment. Once all outstanding payments are current, service will be immediately restored.
Article XXXIII. Definitions
Cloud Client – A cloud client is a client that is not hosting the software and database. Rather, Clearview is providing the necessary hardware on the then provided Clearview Cloud Platform.
Data Transfer – Data Transfer is the process of importing Licensee’s legacy data and, via programmatic methods, transforming it into InFocus in a like (where applicable) and usable manner.
Maintenance Program – The maintenance program is an annual fee, typically paid monthly, that allows the Licensee access to telephone and Internet support, Software upgrades, and access to the knowledge base and any other service Clearview offers under said program.
Qualified Personnel – Qualified Personnel are personnel that have been properly trained to use the specific functions of the Software that they are responsible for.
Self-Hosted – Self-Hosted is a client that purchases the Software license per user and installs and runs the software on their own hardware (or any other hardware not provided by Clearview).
Affiliate – An Affiliate is any entity that is controlled by the Licensee.
BY SIGNING BELOW, REFERRING PARTY ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO ALL OF THE TERMS AND CONDITIONS HEREIN CONTAINED.