SOFTWARE LICENSE AGREEMENT
NOTICE TO USER: THIS IS A LICENSE AGREEMENT BETWEEN YOU AND VIKING CORPORATION (COLLECTIVELY, “VIKING”). BY ACCESSING, VIEWING, OR USING ANY OF VIKING’S SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE WITH THIS LICENSE AGREEMENT.
This Software License Agreement (the “Agreement”) accompanies the Software and governs Your access and use of the Software. Viking licenses the Software to You as the end user or to Your employer who is responsible for and permits Your use of such Software. You acknowledge and agree that this Agreement is enforceable like any written negotiated agreement signed by You and that Your use of the Software constitutes acceptance of the Software License Agreement. If You do not agree to the terms of this Software License Agreement, please do not install, access or use the Software. If you represent a legal entity, such as a customer company of Viking, you represent and warrant that you have the right, power, and authority to enter into this Agreement and to bind the legal entity to this Agreement on its behalf.
You further acknowledge and agree that if you grant access and use rights to the Software to your employees and/or independent contractors (“Authorized Users”), you agree (i) to be responsible for the acts and omissions of such Authorized Users in relation to the Software and this Agreement; and (ii) that all of your obligations under this Agreement will remain in full force and undiminished.
1. DEFINITIONS. All capitalized terms not defined in the main text will have the meaning given to them in this Section 1 (Definitions).
“Affiliates” means, with respect to either Party, any other entity that directly or indirectly controls, is controlled by, or is under common control with that Party.
“Content” means Viking’s proprietary information contained in or provided with the Software, including all images, designs, photographs, writings, graphs, data, design code, analyses, calculations and other data, in each instance, as made available to You by Viking solely for use in connection with the Software.
“Derivative Work” means any modification, improvement or enhancement of the Software.
“Documentation” means explanatory materials accompanying any of the Software or otherwise made available to You by Viking.
“Intellectual Property Rights” means all intellectual property or proprietary rights in any jurisdiction, including e.g. rights in or to patents, registered and unregistered copyrights, software, technology, domain names, trademarks, service marks, designs, and registrations and applications for any of the foregoing, data and documentation thereof, trade secrets and know-how (including but not limited to inventions, development information, specifications, plans, proposals and technical data).
“You” and “Your” refer to any person or entity acquiring or using the Software under the terms of this Agreement.
“Party” means each of Viking and You, and “Parties” means, collectively, Viking and You.
“Viking” means The Viking Corporation, a company organized and existing under the laws of [Michigan] with its headquarters office at [5150 Beltway Dr. SE
Caledonia, Michigan 49316].“Software” means vDesign, vCalc, vInert, vOxeo, vList each in desktop application and Autodesk Revit add-in extension formats, in each instance, as made available to You by Viking. For clarity, vCalc, vInert, vOxeo, vList are available as both a desktop application and an add-in extension, and the vDesign add-in is available only in add-in extension form. The add-ins are designed for and intended for use only with Autodesk Revit.
2. LICENSES.
(a) Software and Content License. Subject to the terms and conditions set forth in this Agreement, Viking grants to You a worldwide, royalty-free, fully paid-up, non-transferable, non-sublicensable, non-exclusive license to: (i) access, view and use the Software solely for its intended purpose and (ii) access, view and use the Content solely in connection with Your use of the Software, for each of clauses (i) and (ii), only for Your internal use.
(b) Documentation License. Subject to the terms and conditions set forth in this Agreement, Viking grants to You a worldwide, royalty-free, fully paid-up, non-transferable, non-sublicensable, non-exclusive license to use the Documentation to assist Your internal use of the Software.
(c) Access Credentials. Viking may provide You with access credentials, typically in the form of a one-time use code, to enable Your initial access and use the Software. Access credentials are for Your internal use only and You shall not make the access credentials available to any other entity or person or sell, transfer, share, or sublicense the access credentials to any other entity or person. You must maintain the confidentiality of the access credentials and shall not allow them to be used by any other party. You are responsible for: (i) acquiring, maintaining and controlling each computing device that You use to access and use the Software and (ii) Your actions to access and use the Software, subject at all times to Your compliance with the terms and conditions of this Agreement.
(d) Feedback. To the extent You provide suggestions, comments, and feedback to Viking regarding any of the Software, Content or the Documentation (“Feedback”), Viking may use and exercise any and all rights in such Feedback without restriction both during and at any time after the term of this Agreement and such Feedback will not be deemed to be Your confidential information or otherwise create any confidentiality obligation.
3. RESTRICTIONS AND PROHIBITED USES.
(a) Except as expressly set forth by this Agreement, You shall not: (1) remove, obscure, or alter any intellectual property rights notice or other proprietary notice or legend appearing in or on any aspect of the Software, the Content or the Documentation, including any copy thereof; (2) modify, revise, improve, translate or create any Derivative Work of the Software, the Content or the Documentation; (3) reverse-engineer, disassemble, decompile or tamper with any portion of the Software or combine or merge any part of the Software with any other software or content; or (4) pledge the Software, the Content or the Documentation as collateral or otherwise encumber such Software, Content or Documentation with any lien or security interest. Each Software program is intended for Your use as an integrated, self-contained computer software program, and You are not authorized to separate the components or modules of any Software for independent access or operation of such Software components or modules, including but not limited to any engine, analysis or calculation components or modules that may be part of the Software.
(b) Except as expressly set forth by this Agreement, You shall not: (1) interfere with any features or functionality of the Software; (2) introduce into the Software or include in or with the Software any viruses, trojan horses, malware, spyware, adware or other disruptive software, or any other software code that is designed to disrupt, damage, or perform unauthorized actions on a computer system; (3) lease, lend or use the Software for timesharing or service bureau purposes; (4) sell, market, license, sublicense, distribute or otherwise grant to any person or entity any right to use the Software or the Content; (5) use the Software or the Content to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (6) refer to or otherwise use the Software or the Content as part of any effort to develop software (including any routine, script, code, or program) having any functional attributes, visual expressions or other features similar to those of the add-in to compete with Viking; (7) publish any performance or benchmark tests or analysis relating to the Software; or (8) operate the Software in a cloud, Internet-based computing or similar on-demand computing environment.
(c)
You are prohibited from using the Software to transmit or otherwise communicate:
i. any defamatory, threatening, obscene, harassing, or otherwise unlawful information;
ii. any advertisement, solicitation, spam, chain letter, or other similar type of information;
iii. any encouragement of illegal activity;
iv. unauthorized use or disclosure of private, personally identifiable information of others;
v. any materials subject to trademark, copyright, or other laws protecting any materials or data of others in the absence of a valid license or other right to do so; and
vi. any other content which is unlawful or otherwise wholly unrelated to Your Viking customer support needs.
(d) if Viking believes or has a reason to believe that You (or any other end user that You have authorized to use the Software) have violated any of the restrictions set forth in this Section 3, without limiting any other available remedies or its termination rights in Section 8, Viking may immediately discontinue, suspend, terminate, or block Your and any other end user’s access to and use of the Software at any time in Viking’s sole discretion.
4. PROPRIETARY RIGHTS. Title and full, exclusive ownership rights in the Software (and all parts of either, including Content), and all reproductions, corrections, modifications, enhancements and improvements, and all related Intellectual Property Rights, including data related to your usage of the Software, are the exclusive property of Viking. Except as expressly stated in Section 2, you do not obtain any rights in the Software, Content, Documentation, our technology, or our intellectual property. Any suggestions, recommendations, improvements, inventions and feedback by you or by anyone on your behalf in connection with the Software, are the sole property of Viking, irrespective of the creator. This Agreement does not grant You any Intellectual Property Rights held by Viking in respect to the Software, the Content or the Documentation. As between You and Viking, You own any materials, such as files, electronic documents, or images, that You upload and import to the Software, and You retain all rights and ownership of such materials.
5. THIRD-PARTY SOFTWARE AND OPEN SOURCE SOFTWARE.
(a) The Software may include or be provided with certain third-party software (including open source software) that is subject to and licensed for Your use under the third-party licenses. Third-party software and the applicable licenses are typically listed in the “Help About” menu for the Software. Your access and use of such third-party software is at all times governed by the applicable third-party licenses (and not the terms and conditions set forth by this Agreement).
(b) With the sole exception of any open source software listed in the “Help About” menu for the Software , You are not authorized to (and You agree that You will not) integrate or use this Software or any modification of the Software with any Viral Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the Software (or a Derivative Work) in source code form, for the purpose of making derivative works. For the purposes of this Section 5, “Viral Open Source Software” means software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license terms that could require, or condition Your use, modification, or distribution of such software on, the disclosure, distribution, or licensing of any other software in source code form, for the purpose of making derivative works, or at no charge. Any violation of the foregoing provision shall immediately terminate all of Your licenses and other rights to the Software and Documentation granted under this Agreement.
6. NO SUPPORT. Viking is under no obligation to provide any technical support or assistance under this Agreement, including any provision of updates, upgrades or future versions of the Software, the Content or the Documentation or any portions thereof, to You or to any third-party. To the extent that Viking may update or revise the Software at any time within its sole discretion, however, You acknowledge that these terms and all applicable modifications of this Agreement apply to Your access, viewing and use of the subsequent updated Software, and You agree to use the subsequent updated software in compliance with the terms contained within this Agreement
7. PRIVACY.
(a) The operation of the Software involves or requires the collection and use of certain information about You to provide You with access credentials for the Software and in Your capacity as an authorized user of the Software. The Software may request that You provide the following information:
i. Your Name;
ii. Your Email;
iii. Your Company’s Name;
iv. Your Location; and
v. Your Role with Your Company.
(b) The Software may contain features that permit the transmission to Viking of information about Your use of the Software, for example, Your opening of the Software to start operation or the number of times that You use the Software to create a report (“Software Usage Information”). These Software features do not permit, however, the transmission of any report (or other content) that You create with the Software or the specific identification of You as the end user that created that report.
(c) When You submit information (including any personally identifiable information) to or via the Software or when Software Usage Information is generated by Your use of the Software, You agree to allow and hereby authorize Viking and its agents to access, store, distribute and use that information for the purposes of providing You with the Software, generating statistical studies, conducting marketing research, improving the functionality and organization of the Software and other Viking programs and products, sending You surveys and notifying You of new Viking products and any changes to our Software that may affect You.
(d) Viking advises You to not provide any confidential or other sensitive information through the Software. Viking is not responsible or liable for any information that You disclose to it that may be in breach or violation of any third-party agreement You may have in place with respect to any such confidential or other sensitive information.
(e) For a full explanation of Viking’s privacy policies, including opt-out provisions, which apply to Your submission to Viking of the information listed in Section 7(a), please reference https://www.vikinggroupinc.com/privacy.
8. TERM AND TERMINATION. This Agreement is effective until terminated. Viking has the right to terminate this Agreement immediately, without judicial intervention or advance notice, for any reason whatsoever (with or without cause). All of Your licensed rights under the Software, the Content and the Documentation will immediately terminate upon termination of this Agreement. Upon termination of this Agreement for any reason whatsoever, the following sections will survive such termination: 1, 2(d), 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20.
9. DISCLAIMER OF WARRANTY. Viking licenses the Software, the Content and the Documentation to You only on an "AS-IS" basis. Viking makes no representation with respect to the accuracy of any analyses performed by the Software or any resultant data output by the Software, the adequacy of the Software, the Content or the Documentation for any particular purpose or with respect to their adequacy to produce any particular result. Viking shall not be liable for any loss or damage arising out of this Agreement or from Your use of or reliance on the Software, the Content or the Documentation. VIKING DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHT IN RESPECT OF THE SOFTWARE, THE CONTENT AND THE DOCUMENTATION. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to You. The foregoing does not affect or prejudice Your statutory rights. To the extent permissible any implied warranties are limited to ninety (90) days from the initial delivery of the Software and Documentation, as applicable.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL VIKING, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND REPRESENTATIVES, OTHER THIRD PARTIES, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE CLAIMS, LOSSES, OR DAMAGES, RELATED TO OR IN CONNECTION WITH THE SOFTWARE OR CONTENT MADE AVAILABLE IN OR THROUGH THE SOFTWARE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, BUSINESS, OR ANTICIPATED SAVINGS, ANY LOSS OF, OR DAMAGE TO DATA, USER CONTENT, REPUTATION, REVENUE OR GOODWILL AND/OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES OR WORK STOPPAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIKING, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES IN CONNECTION WITH ERRORS, OMISSIONS OR INACCURACIES OF CONTENT, OR THE SOFTWARE, OR ANY DECISION MADE IN RELIANCE ON CONTENT CONTAINED IN OR ACCESSIBLE THROUGH THE SOFTWARE. YOUR SOLE REMEDY FOR ANY CLAIMS IN CONNECTION WITH THE SOFTWARE IS TO DISCONTINUE USING THE SOFTWARE AND RELATED CONTENT.
THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL APPLY: (I) EVEN IF VIKING, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (II) EVEN IF ANY REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).
NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU AFTER THE EARLIER OF (A) 12 MONTHS AFTER THE DATE ON WHICH YOU BECOME AWARE THAT A CAUSE OF ACTION HAS ARISEN, OR (B) THE PERIOD SET FORTH UNDER THE APPLICABLE STATUTE OF LIMITATIONS.
BECAUSE SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE MAXIMUM, AGGREGATE LIABILITY OF VIKING TO YOU OR ANY THIRD-PARTY FOR ANY CLAIM RELATED TO OR ARISING UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE IN AN AMOUNT EQUAL TO FIVE HUNDRED U.S. DOLLARS ($US500).
You are solely responsible for any and all liability arising from or relating to use or misuse of any software program that includes, links to or is bundled with the Software (or any derivative work thereof), in whole or in part, and is used by You or Your end users or distributed or commercially exploited by You or on Your behalf.
11. INDEMNIFICATION.
- Generally. You will defend, indemnify, and hold harmless Viking and its Affiliates, and its and their directors, officers, employees, agents, successors, and assigns (“Indemnified Parties”) from and against any and all demands, claims suits, actions or allegations made or brought by a third-party (collectively “Claims”), including costs, losses, damages, expenses, and reasonable attorneys’ fees related to such Claim, that arise from or relate to Your use (or use by any of Your end users) of the Software, the Content or the Documentation, Your violation of this Agreement, Your violation of any law or regulation, or Your violation of any proprietary or privacy right.
(b) Procedure. Viking will notify You in writing of any Claim and permit You, using mutually-agreed counsel, to defend the Claim. Viking will, on Your reasonable request and at Your expense, provide You with reasonable assistance in defending the Claim. You will not stipulate, admit, or acknowledge any fault or liability on any Indemnified Party’s part without Viking’s express prior written consent. You will not consent to the entry of any judgment or enter any settlement without Viking’s prior written consent, which may not be unreasonably withheld. Viking may participate in the defense of any Claim at its own expense and with counsel of its own choosing. If Viking reasonably determines that any Claim might adversely affect any Indemnified Party then, without limiting Your indemnification obligations, Viking may take control of the defense of the Claim at Your sole expense.
12. ASSIGNMENT. You may not delegate, assign or transfer this Agreement, the license(s) granted or any of Your rights or duties hereunder, expressly, by implication, by operation of law, by way of merger (regardless of whether You are the surviving entity) or acquisition, or otherwise and any attempt to do so, without Viking’s express prior written consent, shall be null and void. Viking may assign this Agreement, and its rights and obligations hereunder, in its sole discretion.
13. NOTICES. Written notices arising under this Agreement or requests for information should be directed to the Viking at the address provided in this Agreement, as amended from time to time.
14. WAIVER. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Viking, its agents or employees, but only by an instrument in writing signed by an officer of Viking.
15. INDEPENDENT PARTIES. Nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the Parties.
16. AUTHORITY. Each Party represents and warrants that it has the full power and all necessary rights to enter into and perform under this Agreement and to comply with the terms and conditions set forth herein.
17. GOVERNING LAW; FORUM. This Agreement is governed by the law of the State of Michigan, United States of America, excluding its conflicts of law rules. Viking and You irrevocably submit to venue and exclusive personal jurisdiction in the federal and state courts in Kent County, Michigan for any dispute relating to or arising out of this Agreement, and each waives all objections to jurisdiction and venue of such courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
18. SEVERABILITY; CONSTRUCTION. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the Parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent they are enforceable. The section headings of this Agreement are for convenience only and have no interpretive value.
19. U.S. GOVERNMENT REGULATIONS. You agree that You will fully comply at all times with all applicable economic sanctions and import and export control laws and regulations relating to Your performance and Your use of the Software and the Documentation under and arising from this Agreement. Without limiting this requirement, You agree that You will not export, re-export, sell, resell or transfer any export-controlled commodity, technical data or software: (i) in violation of any law, regulation, order, policy or other limitation imposed by the United States (including the United States Export Administration Regulations, the International Traffic in Arms Regulations and/or the economic sanctions authorities administered by the United States Department of State and the United States Department of the Treasury), or of any other government having authority and jurisdiction over commodities, technical data or software being sold or distributed by You under or in connection with this Agreement; (ii) to any country for which an export license or other governmental approval is required at the time of export, re-export, sale or transfer without first obtaining all necessary licenses or equivalent authorization or permission; or (iii) to any person, organization, entity, or other user or intermediary to whom export, re-export, sale or transfer is prohibited or barred under applicable economic sanctions, export controls, “denied persons” listings, or other comparable controls on recipients, intermediaries, or end users of export-controlled commodities, technical data or software. All licenses and any other rights to use the Software and the Documentation are granted on condition that such licenses and rights are forfeited if You fail to comply with any of the terms of this Agreement, including but not limited to this Section 19.
20. MISCELLANEOUS. When conflicting language exists between this Agreement and any other terms or conditions included with the Software or the Documentation, this Agreement shall supersede. If either You or Viking employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees. You acknowledge that You have read this Agreement, understand it and that it is the complete and exclusive statement of Your agreement with Viking which supersedes any prior agreement, oral or written, between Viking and You with respect to the licensing to You of the Software and the Documentation. The English language version of this Agreement shall be the version used in the event any dispute arises hereunder.