Vizuly Commercial Software License Agreement

THIS DOCUMENT IS A LEGAL AGREEMENT (the “Agreement”) BETWEEN BRIGHTPOINT CONSULTING INC. (“We,” “Us”) AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“You”) IN RELATION TO VIZULY SOFTWARE (DEVELOPED BY BRIGHTPOINT CONSULTING, INC.) GENERALLY MADE AVAILABLE IN SOURCE CODE FORMAT.

RIGHTS GRANTED HEREIN APPLY ONLY TO SOFTWARE FOR WHICH YOU’VE PAID THE APPLICABLE FEE, WHICH MAY INCLUDE THE FOLLOWING VIZULY COMPONENTS, VIZULY EXAMPLES, VIZULY STARTER KITS, AND OTHER SOFTWARE OFFERED FOR SALE ON WWW.VIZULY.IO

BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT PROCEED WITH THE DOWNLOADING, COPYING, INSTALLATION OR ANY OTHER USE OF THE SOFTWARE OR ANY PORTION THEREOF AS YOU HAVE NO RIGHTS TO DO SO. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT LAWS, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.

THIS LICENSE AGREEMENT DESCRIBES YOUR RIGHTS AND RESTRICTIONS WITH RESPECT TO THE SOFTWARE AND ITS COMPONENTS.

1. DEFINITIONS

“Vizuly Software” means any software, source code, examples, sample data, or elements that you have downloaded, purchased, or received by any other means that bear the Vizuly BrightPoint Consulting, Inc. copyright and reference this license URL within its source files: “vizuly.io/commercial-license/.

“Application” means any software, application, or elements that Your Designated Users develop using the Software or Modifications in accordance with this Agreement; provided that any such Application (i) must have substantially different functionality than the Software, and (ii) must not allow any third party to use the Software, or any portion thereof, for software development or application development purposes.

“Designated User” shall mean a single distinct person for whom You have purchased a license to use the Software, whether such person is an employee acting within the scope of their employment with You or Your consultant or contractor acting within the scope of the services they provide for You. A Designated User can be replaced with a new Designated User only after being a Designated User for a minimum of six (6) months.

“End User” means an end user of Your Application who acquires a license to such solely for their own internal use and not for distribution, resale, user interface design, or software development purposes.

“Modification” means: a) any addition to or deletion from the contents of a file included in the original Software source code or previous Modifications created by You, and/or b) any new file that leverages any part of the original Software source code or previous Modifications.

“Sample Code” means sample source code included with the Software and designated as “sample code,” “samples,” “sample application code,” “stencils,” “app templates,” and/or “snippets,” and/or found in directories labeled “samples” or “examples”.

2. LICENSE GRANT

Subject to the payment of the fee required, and subject to Your compliance with all of the terms and conditions of this Agreement, We grant to You a revocable, non-exclusive, non-transferable and non-sublicensable license (i) for Designated User(s) to use the Software to create Modifications and Applications; (ii) for You to distribute the Vizuly Software and/or Modifications to End Users solely as integrated into the Applications; and (iii) for End Users to use the Vizuly Software as integrated into Your Applications in accordance with the terms of this Agreement.

In addition to the other terms contained herein, in the event You have downloaded or received beta or pre-release versions of the Vizuly Software (the “Beta Software”) from Us, subject to Your compliance with all of the terms and conditions of this Agreement, We grant to You a revocable, non-exclusive, non-transferable and non-sublicensable license to install and use the Beta Software strictly for Your internal evaluation and review purposes and not for production purposes (the “Beta License”). You are explicitly not permitted to distribute the Software to any user outside the Organization on whose behalf You have undertaken this license. Your rights to use the Beta Software will immediately terminate upon the earlier of (i) the expiration of the evaluation period established by Us, or (ii) such time that You purchase a license to a non-evaluation version of the Software. We reserve the right to terminate Your Beta License at any time in Our absolute and sole discretion.

YOU ACKNOWLEDGE THAT TRIAL AND/OR BETA SOFTWARE MIGHT PLACE WATERMARKS ON OUTPUT, CONTAIN LIMITED FUNCTIONALITY, FUNCTION FOR A LIMITED PERIOD OF TIME, OR LIMIT THE FUNCTIONALITY OR TIME OF FUNCTIONING OF ANY OUTPUT. ACCESS TO AND/OR USE OF ANY FILES OR OUTPUT CREATED WITH SUCH SOFTWARE IS ENTIRELY AT YOUR OWN RISK. WE ARE LICENSING THE SOFTWARE ON AN “AS IS” BASIS AT YOUR OWN RISK AND WE DISCLAIM ANY WARRANTY OR LIABILITY TO YOU OF ANY KIND.

Subject to the payment of the fee required, You may modify the “Sample Code” solely for the purposes of designing, developing and testing Applications. You are permitted to use, copy and redistribute Your modified Sample Code only if all of the following conditions are met: (a) You include Our copyright notice (if any) with Your Application, including every location in which any other copyright notice appears in such Application; (b) You do not otherwise use Our name, logos or other of Our trademarks to market Your Application, unless otherwise agreed by Us in writing; and (c) each Designated User is duly licensed to use and distribute any of Our products that may be included in an application using and/or generated by the Software.

3. OWNERSHIP

This is a license agreement and not an agreement for sale. We reserve ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this Agreement.

We provide You with source code to the Vizuly Software so that You can create Modifications and Applications. While You retain all rights to any original work authored by You as part of the Modifications, We continue to own all copyright and other intellectual property rights in the Vizuly Software.

You must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software.

4. PROHIBITED USES (VIZULY SOFTWARE)

You may not redistribute the Vizuly Software or Modifications other than by including the Vizuly Software or a portion thereof within Your Application. You may not redistribute the Vizuly Software or Modifications as part of any Application that can be described as a development toolkit or library, an application builder, a website builder or any application that is intended for use by software, application, or website developers or designers. You may not redistribute any part of the Vizuly Software documentation. You may not change or remove the copyright notice from any of the files included in the Vizuly Software or Modifications.

You are required to ensure that the Vizuly Software is not reused by or with any applications other than those with which You distribute it as permitted herein. For example, if You install the Vizuly Software on a customer’s server, that customer is not permitted to use the Vizuly Software independently of Your Application, and must be informed as such.

5. TERMINATION

This Agreement and Your right to use the Software and Modifications will terminate immediately if You fail to comply with any of the terms and conditions of this Agreement. Upon termination, You agree to immediately cease using and destroy the Software or Modifications, including all accompanying documents. The provisions of sections 3, 4, 5, 6, 7, 8, and 9 will survive any termination of this Agreement.

6. DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. WE DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE OR THE CODE IT PRODUCES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.

7. LIMITATION OF LIABILITIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR RESELLERS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LAW) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE CODE IT PRODUCES OR ANY OTHER SUBJECT MATTER RELATING TO THIS AGREEMENT, EVEN IF WE OR OUR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATER RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR (II) FIVE HUNDRED DOLLARS ($500).

8. PAYMENT AND TAXES

If credit has been extended to You by Us, all payments under this Agreement are due within thirty (30) days of the date We mail an invoice to You. If We have not extended credit to You, You shall be required to make payment concurrent with the delivery of the Software by Us. Any value added tax, use tax, sales tax or similar tax (“Transaction Taxes”) shall be Your sole responsibility. Each party shall pay all taxes (including, but not limited to, taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of this Agreement and any payments made hereunder (including those required to be withheld or deducted from payments); provided that You shall be responsible for all Transactions Taxes and shall pay or reimburse Us for the same upon invoice. Each party shall furnish evidence of such paid taxes as is sufficient to enable the other party to obtain any credits available to it, including original withholding tax certificates. Notwithstanding the foregoing, Software ordered through Our resellers is subject to the fees and payment terms set forth on the applicable reseller invoice.

9. MISCELLANEOUS

The license granted herein applies only to the version of the Software available when purchased in connection with the terms of this Agreement, and to any updates and/or upgrades to which You may be entitled. Any previous or subsequent license granted to You for use of the Software shall be governed by the terms and conditions of the agreement entered in connection with purchase or download of that version of the Software.

While redistributing the Vizuly Software or Modifications thereof as part of Your Application, You may choose to offer acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this Agreement. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on our behalf. You shall indemnify Us and our resellers, or at Our option, defend Us and our resellers against any claim, suit or proceeding brought against Us or our resellers (i) arising by reason of Your accepting any such support, warranty, indemnity or additional liability; or (ii) arising out of the use, reproduction or distribution of Your Application, except to the extent such claim is solely based on the inclusion of the Vizuly Software therein. Further, You agree only to distribute the Vizuly Software pursuant to an enforceable written agreement for Our benefit that includes all the limitations and restrictions of this Agreement and is as protective of Us and Vizuly Software as is this Agreement. For clarity, for Vizuly Software for which You have paid a fee, You must purchase Designated User licenses for each contractor or consultant who uses the Vizuly Software to create an Application on Your behalf (including system integrators), whether or not such contractor or consultant has its own license to the Vizuly Software.

Unless we are notified otherwise, You agree to be identified as a customer of Ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in our marketing materials and web site.

You may not assign or transfer this Agreement without Our prior written consent. Any attempted assignment or delegation in violation of this Section shall be null and void. This Agreement may be assigned by Us in whole or part and will inure to the benefit of Our successors and assigns. Notwithstanding the foregoing, in any instance in which You transfer ownership of an Application on a work for hire basis, You may assign licenses for the total Designated Users that have used the Software to develop said Application under this Agreement to another party (Assignee) provided (i) You provide written notice to Us prior to the effective date of such assignment; and (ii) the transfer is in quantities We generally make available to Our customers (minimum 5 Designated Users); and (iii) there is a written agreement, wherein the Assignee accepts the terms of this Agreement. Upon any such transfer, the Assignee may appoint new Designated Users.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No oral or written information given by Us, Our resellers, or otherwise on Our behalf shall create a warranty or collateral contract, or in any way increase the scope of this Agreement in any way, and You may not rely on any such oral or written information. Any waivers or amendments shall be effective only if made in writing. Further, any different or additional terms of any related purchase order, confirmation, or similar form shall have no force or effect.

There are no implied licenses or other implied rights granted under this Agreement, and all rights, save for those expressly granted hereunder, shall remain with Us and our licensors. In addition, no licenses or immunities are granted to the combination of the Software and/or Modifications, as applicable, with any other software or hardware not delivered by Us or Our resellers to You under this Agreement. Your rights under this Agreement apply only to Software, Modifications, and/or Applications for which all Designated Users are duly licensed hereunder.

If any provision in this Agreement shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this Agreement shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this Agreement shall remain in effect. The failure of either party to enforce any provision of this Agreement may not be deemed a waiver of that or any other provision of this Agreement.

This Agreement is governed by the law of the State of California, United States (notwithstanding conflicts of laws provisions), and all parties irrevocably submit to the jurisdiction of the state or federal courts of the State of California and further agree to commence any litigation which may arise hereunder in the state or federal courts located in the judicial district of San Diego County, California, US.