End User License Agreement for nVision Global

SOFTWARE LICENSE TERMS

THESE SOFTWARE LICENSE TERMS (THIS “AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN nVision Global Technology Solutions, Inc., a Georgia corporation, having its principal place of business at 1900 Brannan Road, McDonough, Georgia 30253 AND “CLIENT” as defined below.  PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE “SOFTWARE” (AS DEFINED BELOW).

nVISION IS WILLING TO GRANT ACCESS TO THE SOFTWARE TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (“CLIENT”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT.  BY ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT.

ACCESSING, LOADING, INSTALLING AND/OR USING THE SOFTWARE MEANS THAT CLIENT ACCEPTS THIS AGREEMENT ON BEHALF OF ITSELF AND ALL PERMITTED USERS.  IF CLIENT DOES NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE.

Definitions:

“Documentation” means the operating, training and reference manuals relating to the use and operation of the Software, and any enhancements, updates or versions related thereto, whether in printed form, electronic form, posted on nVision Global’s website, available on-line or in any other format otherwise made available by nVision Global to Client.

“Logistics Services Agreement” means that certain Logistics Services Agreement between nVision Global and Client.

“Module“ means each separate module of the Software that Client is authorized to use by nVision Global.

“Permitted User” means the named or specified (by password or other user identification) individuals authorized by nVision Global using the Software, regardless of whether the individual is actively using the Software at any given time.  The maximum number of Permitted Users that may use or access the Software is specified in Appendix A to the Logistics Services Agreement.  Client is responsible for ensuring that all usage of the Software by Permitted Users is in accordance with the terms and conditions of this Agreement.  In no event shall any individual that is employed by, or acting on behalf or under the direction or control of, a direct competitor of nVision Global be authorized as a Permitted User.

“Software” means the object code of nVision Global’s proprietary software for logistics, distribution, transportation and/or supply chain processes and management, and its associated software modules that are authorized by nVision Global for use by Client.

The Software includes all web tools, business intelligence tools and other technology accessed through or used by the Software.

Software License:

The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  The Software is licensed, not sold.

nVision Global and its suppliers and licensors continue to own all rights of authorship, including all copyright, trade secret, patent, trademark, service mark and other proprietary rights, in the Software, data and other content provided hereunder and any other copies of such items that you are authorized by this Agreement to make.

Subject to the terms of this Agreement, nVision Global grants to Client a personal, non-exclusive, non-transferable (except as provided below) license for Permitted Users to use the Software and the documentation during the term of this Agreement, solely for Client’s internal business purpose of processing Client’s data.

Limitations and Restrictions:
Notwithstanding any other provision of this Agreement, in no event shall Client (i) permit any person, individual or entity to use the Software other than Permitted Users, (ii) derive or attempt to derive the source code or structure of all or any portion of the Software by reverse engineering, disassembly, decompilation or any other means; (iii) give, sell, rent, lease, timeshare, sublicense, publish, assign, market, transfer or distribute any portion of the Software or Documentation to any third party; (iv) publish or otherwise disclose the results of any benchmark tests run on the Software; (v) modify, translate, patch, alter or otherwise change the Software or Documentation, or any part thereof, or create any derivative works of the Software; or (vi) use the Software as a service bureau. Without limiting the generality of the foregoing, Client acknowledges and agrees that in the event that Client breaches any of the foregoing limitations and restrictions or any other term or condition of this Agreement, nVision Global shall have the right to immediately: (a) suspend Client’s and/or any or all Permitted Users’ access to the Software; and (b) invoice Client (jointly and severally, with any other entity responsible for any unauthorized access to the Software) triple nVision Global’s then-current standard monthly per-user license fees for each incident of unauthorized access or use of the Software by each unauthorized user, which Client acknowledges and agrees shall represent a reasonable minimum estimation of the damages that would results from any such misuse of the privileges granted herein.  Client shall be responsible for the immediate payment of all such fees.  The foregoing remedies shall be in addition to, and not in lieu of, any and all other remedies that nVision Global may have at law or in equity upon the discovery of additional damages caused by the misuse of the privileges granted herein.  Client hereby acknowledges and agrees that nVision Global shall have no responsibility or obligation to reactivate Client access to the Software after the occurrence of any such violation.

Client Responsibilities:  Client is solely responsible for all data and information (the “Data”) that Client or any Permitted User imports or enters into the Software.  Client represents and warrants that the Data does not, and will not at any time, (i) infringe upon or violate any intellectual property, privacy, publicity or other right of a third party, (ii) violate any applicable law, rule or regulation, or (iii) contain any virus or harmful component.  Client agrees, on behalf of itself and all Permitted Users, that nVision Global will not be responsible for, or have any liability in connection with, any use or misuse of Data or with respect to electronic transactions.  Client hereby grants to nVision Global and its licensors and suppliers in connection with the Software a non-exclusive, non-transferable license to use, upload, display, copy and store the Data.  Client will not cause, make or permit any infringement or other violation of any third party intellectual property, privacy, publicity or other rights.

Client will be solely responsible for, and will use commercially reasonable efforts to provide and maintain in good working order, its own Internet access, telecommunications equipment, software and other materials necessary for accessing the Software.

Client will indemnify, defend and hold harmless nVision Global and its suppliers and licensors, and any of their respective employees, officers, directors, representatives, agents, attorneys and insurers, from any liability, damages or costs (including, without limitation, attorneys’ fees) arising out of, or relating to, breach of this Agreement or any suit or action brought by Permitted Users.

Confidentiality:  Client acknowledges and agrees that the Software, Documentation, and software, systems and information accessible through the Software, contain and/or represent the confidential information (“Confidential Information”) of nVision Global.  Confidential Information includes, without limitation, the source code and the business rules associated with the Software, all past, current and planned specifications, data, know-how, methods of doing business, formulae, compositions, processes, designs, inventions, ideas, database technologies, systems, structures and architectures, documentation, and any other past, present or anticipated information associated with the Software (including any Module) or nVision Global’s business.  In addition, the term “Trade Secrets” as used herein means any information of nVision Global or its licensors or suppliers, without regard to form, that constitutes a trade secret under applicable law.  Client acknowledges that the source code of the Software and its Modules constitute a Trade Secret.

Non-disclosure:  During the term of this Agreement and thereafter as described below, Client shall keep secret, treat as confidential and not disclose to any third party each item of the Confidential Information and Trade Secrets.  Client shall not permit the disclosure of any Confidential Information to any person or entity whatsoever for a period of three years from the date this Agreement expires or terminates.  Client shall not permit the disclosure of the Trade Secrets to any person or entity whatsoever for as long as such Trade Secret meets the definition of a Trade Secret under applicable law.  Client shall not use, or permit the use of, any of the Confidential Information or Trade Secrets for any purpose other than in connection with the proper performance of its obligations under this Agreement.  The originals and all copies of any Confidential Information or Trade Secrets, regardless of the medium in which they are stored, shall be promptly returned to nVision Global in good order upon completion or termination of this Agreement.  Client acknowledges that any use or disclosure of the Confidential Information or Trade Secrets in any manner inconsistent with the provisions of this Agreement may cause nVision Global and/or its suppliers and licensors irreparable harm, and Client agrees that nVision Global and/or its suppliers and licensors shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure, in addition to appropriate remedies.

Warranty Disclaimer:

DISCLAIMER OF WARRANTIES AND REMEDIES.  nVision Global HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, PERFORMANCE, EFFORT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.  nVision Global MAKES NO WARRANTY AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE SOFTWARE.  nVision Global DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN COMBINATIONS WHICH CLIENT MAY SELECT FOR USE, AND nVision Global DOES NOT WARRANT AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE.

nVision Global DISCLAIMS, AND CLIENT HEREBY WAIVES, ON BEHALF OF ITSELF AND THE PERMITTED USERS, AND THE BENEFIT OF ANY REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.  THE ENTIRE RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH CLIENT.

No Liability for Consequential Damages:  UNDER NO CIRCUMSTANCES WILL nVision Global, OR ANY OF nVision Global’s OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES HAVE ANY LIABILITY TO YOU FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS’ FEES), OR LOSS OF PROFITS, REVENUE OR GOODWILL, IN ANY WAY, REGARDING THIS AGREEMENT OR RESULTING FROM THE USE OR ACCESS OR INABILITY TO USE OR ACCESS, OR PERFORMANCE OR NONPERFORMANCE OF, THE SOFTWARE, OR ANY COMPONENTS THEREOF, INCLUDING FAILURE OF ESSENTIAL PURPOSE, EVEN IF nVision Global HAS  BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.  nVision Global’s MAXIMUM LIABILITY FOR ANY CLAIM BY CLIENT OR ANYONE CLAIMING THROUGH OR ON BEHALF OF CLIENT  (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), SHALL NOT IN ANY EVENT EXCEED THE ACTUAL AMOUNT, IF ANY, PAID BY CLIENT FOR USE OF THE SOFTWARE PURSUANT TO THE LOGISTICS SERVICES AGREEMENT.

NOT FAULT TOLERANT:  THE SOFTWARE MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF LICENSED SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

Termination:  This Agreement shall automatically and immediately terminate upon the expiration or termination of the Logistics Services Agreement for any reason.  In addition, nVision Global may terminate this Agreement upon written notice to Client if Client or any Permitted User breaches any of the terms and conditions of this Agreement or the Logistics Services Agreement.  Termination of this Agreement shall not limit nVision Global from pursuing any other remedies available to it, nor shall it relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client. Immediately following termination, Client and all Permitted Users shall cease using the Software, and Client shall delete and remove all instances of the Software installed on its systems, and shall return or destroy all copies of Confidential Information in its possession.

EXPORT AND RESTRICTED RIGHTS:  The Software is provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as amended and as applicable, or any successor regulations thereto.  For the purposes thereof, “Manufacturer” is nVision Global Technology Solutions, Inc., 1900 Brannan Road, McDonough, Georgia 30253.

Client shall not export or transmit the Software or any part thereof, directly or indirectly, to any restricted countries or in any manner that would violate the Export Administration Act of 1979, as amended, or any United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to United States law.

Audit:  nVision Global, and its authorized representatives or agents, shall have the right, upon notice to Client, to enter onto the premises of Client or any Permitted User, or conduct a survey via telephone, or electronic mail, to perform an audit to ensure that Client’s use and access to the Software is in compliance with this Agreement and the Logistics Agreement.  Client shall cooperate with any such audit and shall keep, and shall allow nVision Global to access, accurate records of each computer on which the Software, or portions of the Software are installed, the locations of such computers, and the number and identify of Permitted Users authorized to use the Software.  nVision Global shall have the right to disclose the results of any audits to its licensors and suppliers.