Prism Software License Agreement:
This License Agreement (“Agreement”) is made between Prism Visual Software, its affiliates and subsidiaries (collectively “Prism”), with its principal address at 55 Bryant Ave., Roslyn NY 11576 USA and the Customer (as defined below). This Agreement, inclusive of any attached Schedule(s), is effective on the date the Customer signs the Agreement or electronically clicks “Agree and Download” and thereby agrees to the terms of this Agreement (the “Effective Date”).
BY DOWNLOADING OR INSTALLING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT HE/SHE HAS READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEM. CUSTOMER UNDERSTANDS THAT, IF THE LICENSE TO THE SOFTWARE WAS PURCHASED FROM AN AUTHORIZED RESELLER OF PRISM, THAT RESELLER IS NOT PRISM'S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON PRISM'S BEHALF OR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.
1. DEFINITIONS: The following definitions will apply:
1.1. “Customer” means the legal entity or individual that agrees to the terms of this Agreement. The individual who physically signs or electronically agrees to this Agreement represents and warrants that he/she has the legal authority to agree to the terms and conditions contained herein.
1.2. “Software” means Prism Visual Software Software, in Source Code and Object Code, including, as applicable, executable and non-executable application files that Customer may download or receive on electronic media.
1.3. “Documentation” means any written materials supplied by Prism, either in print or digital format, to be used in conjunction with the Software for purposes including, but not limited to, installation, training, and demonstration of the Software.
1.4. “Licensed User” means one of Customer’s employees, representatives, consultants, contractors, agents or other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Software and have been supplied user identifications and passwords by Customer (or by Prism at Customer’s request).
1.5. “Third Party” means any person or organization who is not an employee, representative, consultant, contractor, agent, or other person expressly designated by Customer to conduct business on Customer’s behalf.
1.6. “Derivative Work” means any work derived from the Software or in which the Software is an integrated component, and which derivation was created or developed, at the expense of, or on the initiative of Customer. Derivative Works may include but are not limited to software applications, cloud-based (Software as a Service) applications, or online portals that integrate with the Software.
1.7. “Software Update Release” means an embodiment of the Software that delivers minor performance improvements or enhancements of existing features and/or functionality to the Software.
1.8. “Software Upgrade Release” means an embodiment of the Software that delivers substantial performance improvements, architectural changes or new features and/or functionality to the Software, for which Prism may charge a separate license fee.
1.9. “Support Services” means the services provided by Prism including Software support services for supporting the software and updated releases and for which Customer pays a separate annual support fee.
2. LIMITED LICENSE:
2.1. Subject to Customer’s compliance with the terms and restrictions contained herein, Customer is entitled to use this Software for Customer’s own internal business use, but may not sell, transfer, rent, or sub-license the Software, Documentation, or Derivative Work to any Third Party in any way. Customer may not grant any Third-Party access to any administrative functions of the Software including, but not limited to, survey creation and editing, report creation and editing, user management functions, and system administrative functions.
2.2. Customer may use one copy (instance) of the Software on a single server or single web farm environment for production purposes and one copy of the Software on a single server or single web farm environment for testing and/or development purposes (Enterprise-level license needed to support web farm environments). Customer may use additional copies of the Software on additional servers or web farm environments only if agreed to in writing by Prism and only if all applicable license fees have been paid.
3. LICENSE PURCHASE: Customer has agreed to purchase the number of software licenses as specified through an ordering document (“Order Form”). Customer has further agreed to pay all fees specified thereon within thirty (30) days from the date of such Order Form.
4. OWNERSHIP; COPYRIGHT: Title to the Software and the Documentation, including Derivative Works thereof, and patents, copyrights, and all other property rights applicable thereto, shall at all times remain solely and exclusively with Prism, and Customer shall not take any action inconsistent with such title. The Software and the Documentation are protected by United States and international laws, rules, regulations, and treaty provisions. Any rights not expressly granted herein are reserved by Prism.
5. RESTRICTIONS OF USE: Customer may not license, sublicense, rent, resell, lease or otherwise supply the Software, Documentation or Derivative Works for use in, or for the benefit of, any Third Party, without the prior written consent of Prism. Customer may not modify, enhance, supplement, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software to human readable form. Customer will not use or access the Software to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Software, (iii) make Derivative Works based upon the Software, except for Customer’s own internal business use (iv) copy any features, functions or graphics of the Software. Use, resale or exploitation of the Software except as expressly permitted in this Agreement is prohibited.
6. SUPPORT SERVICES: If Customer has purchased Support Services or if any Software license purchased by the Customer includes Support Services, Customer agrees that those Support Services are bound by the Prism Terms of Support.
7. CONFIDENTIALITY: Customer acknowledges and agrees that the Software and associated Documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Prism and its licensors. Customer may not use or disclose the Proprietary Information without Prism's prior written consent, except disclosure to and subsequent uses by Customer’s employees and contractors who have a need-to-know, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement. Customer agrees to use at least the same degree of care in protecting the Proprietary Information as Customer uses to protect Customer’s own similar information but in no event less than reasonable care. Customer acknowledges that due to the unique nature of the Proprietary Information, Prism will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information. In addition to any other remedies that may be available in law, in equity, or otherwise, Prism shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure. Customer shall not use any information or data disclosed by Prism in connection with this Agreement to contest the validity of any Prism intellectual property. Any such use of Prism information and data shall constitute a material, non-curable breach of this Agreement.
8. LIMITED WARRANTY: Prism warrants for a period of ninety (90) days following original purchase of this copy of the Software that the Software will perform substantially in accordance with the Documentation. Customer must report a breach of the foregoing warranty during the warranty period. In the event of breach of this limited warranty, Prism will use commercially reasonable efforts to repair the Software or replace it with software of substantially similar functionality. This limited warranty: (i) applies to the initial purchaser only and may be acted upon only by the initial purchaser; and (ii) does not apply to any patch, update, upgrade, modification, or other enhancement provided by Prism under a separate maintenance agreement with respect to the Software or the Documentation provided by Prism which are provided on an AS IS BASIS ONLY. Prism does not warrant that the Software will meet Customer’s specific requirements or that operation of the Software will be uninterrupted or error-free. Prism is not responsible for any problem, including any problem which would otherwise be a breach of warranty, caused by (i) modifications to the Software by parties other than Prism, (ii) changes in the operating characteristics of computer hardware or computer operating systems, (iii) interaction of the Software with hardware or software not supplied or approved by Prism, or (iv) accident, abuse, virus or misapplication. EXCEPT AS STATED ABOVE, PRISM AND ITS LICENSORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THIS SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THIS SECTION SETS FORTH PRISM'S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR BREACH OF THE LIMITED WARRANTY
9. LIMITATION OF LIABILITY: IN NO EVENT WILL PRISM'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO PRISM PURSUANT TO THIS AGREEMENT (INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND (ii) IN NO EVENT WILL PRISM BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF PRISM IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this section, Prism's liability will be limited to the maximum extent permissible.
10. TERMINATION: Without prejudice to any other rights, Prism may terminate this license if Customer fails to comply with the terms and conditions of this License. In such event, Customer must destroy all copies of the Software and Documentation and all of its component parts.
11. GENERAL: This Agreement constitutes the entire understanding between Prism and Customer with respect to subject matter hereof. Any change to this Agreement must be in writing, signed by Prism and Customer. Terms and conditions as set forth in any purchase order which differs from, conflict with, or are not included in this Agreement or the Ordering Form, shall not become part of this Agreement unless specifically accepted by Customer in writing. Customer shall be responsible for and shall pay, and shall reimburse Prism on request if Prism is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Prism's net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Package.
12. AMENDMENT. This Agreement may not be modified except (i) by authorized representatives of each party and (ii) in a written contract signed by both parties.
13. ASSIGNMENT AND SUCCESSORS: Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
14. EXPORT AND IMPORT COMPLIANCE: In the event Customer exports the Software or the Documentation outside of the United States, Customer assumes the responsibility for compliance with all applicable import, export and re-export regulations.
15. PUBLICITY: Customer consents to the use of its company name and/or logo on Vendor website or in Vendor advertising or promotional literature, provided that such advertising and promotional literature only refers to Customer as a customer of Vendor.
16. GOVERNMENT RESTRICTED RIGHTS: The Software and Documentation are “commercial computer software” or “commercial computer software documentation.” Absent a written agreement to the contrary, the U.S. Government’s rights with respect to such Software or Documentation are limited by the terms of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable.
17. GOVERNING LAW; ARBITRATION: This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts, U.S.A., excluding (a) its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. The parties agree to the exclusive jurisdiction of the courts of New York.
PLEASE DIRECT ALL INQUIRIES TO:
Prism Visual Software
105 Maxess Rd., Melville, NY 11747
Tel: 516-944-5920
email: info@prismvs.com