Updated November 1, 2023
These terms and conditions are incorporated into the Evaluation License Agreement between VivaLNK, Inc. (“Vivalink”) and Customer. Customer and Vivalink agree to these terms and conditions.
1. Vivalink Products.
- a. Licensed Products. Subject to the terms of the Agreement, Vivalink licenses certain hardware and software and associated Documentation (collectively, the “Products”) as set forth in the Agreement to the Customer. The Products are licensed to the Customer and remain the property of Vivalink. Products shall at all times retain the legal status of personal property of Vivalink and Vivalink shall own all title to the Products. The Products are licensed for the Evaluation Term.
- b. Delivery. Vivalink will deliver all Products ordered pursuant to the Agreement to the Customer’s address set forth in the Agreement and delivered to the Customer or its carrier agent F.O.B. shipping location, at which time risk of loss and title will pass to the Customer. The Customer will also bear all applicable taxes, duties, and similar charges that may be assessed against the Products after delivery to the carrier at Vivalink’s facilities. As used in this Agreement, the term F.O.B. will be construed in accordance with the International Chamber of Commerce “Incoterms” (published 2020).
- c. Limited License. Subject to the terms of the Agreement, Vivalink hereby grants Customer a limited, non-exclusive, non-sublicensable, revocable, non-transferable, and non-base right and license in the Territory during the Evaluation Term to: (i) internally use each Product and the proprietary Vivalink machine-readable (object code) version of computer programs made available for license by customers that is installed on the Product (“Product Software”); and (ii) use the written materials regarding the use of the Product Software made available from time to time (“Documentation”) in connection with Customer’s permitted use of the Product and Product Software.
- d. Prohibited Use. Customer shall not: (i) pledge, loan, mortgage, or attempt in any other manner to dispose of the Products or to permit any liens, encumbrances, or legal process to be incurred or levied on the Products; (ii) copy, modify, or create derivative works or improvements, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Product or Product Software; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available any Product to any third party except in combination or integration with Customer’s services and products as permitted by this Agreement; (iv) remove, delete, alter, or obscure any trademark, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Product; (v) access or use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law; (vi) combine the Product with any third-party materials, such as adhesives, without Vivalink’s prior written consent; or (vii) access or use the Products for purposes of the development of a competing software, service or product to Vivalink’s detriment or commercial disadvantage.
2. Customer Obligations.
- e. Non-Exclusive Relationship. Vivalink reserves the unrestricted right to license, sell, market, and make available the Products and Product Software worldwide to any third party and to do so through any method of its choosing.
- a. Care of Products and Product Software. Customer shall ensure at all times that the environment in which each Product operates, and its and each user’s use of each Product complies with the requirements set forth in the Agreement and the Documentation. Without limiting the foregoing, Customer shall: (i) maintain each Product in a physically secure environment in order to prevent, damage, unauthorized use, and theft; (ii) notify Vivalink of any discrepancies or malfunctions encountered with, or damage to, each Product within five (5) business days of discovery; (iii) manage and provide user education regarding the Product to avoid misuse and mishandling of the Product; and (iv) ensure that each Product is free from abuse, theft, and damage with the same degree of efforts as Customer uses for any similar equipment, but in no case with less than reasonable care.
- b. Customer Personnel. Customer shall require all personnel, employees, consultants, contractors, agents, officers, and representatives (“Customer Personnel”) to adhere to the terms and conditions of this Agreement. The company is solely responsible for all acts or omissions of Customer Personnel in connection with their use of the Product and Product Software.
- c. Customer Data. Customer is responsible for any data that is provided or transmitted by Customer or its Users to Vivalink or the specific part of the Products and Product Software used by Vivalink to process, store, or host Customer Data (the “Customer Data System”), or otherwise is received by Vivalink or the Customer Data System on behalf of Customer or its users, in both cases, in providing the Products to Customer as provided, transmitted, or used by Customer and its Users in connection with the Products (“Customer Data”).
- d. Usage Data. Customer shall not interfere with the collection of any performance and usage information relating to User’s use of a Product which the Product generates or collects which is in aggregated or de-identified form only (“Usage Data”). Usage Data does not: (i) identify natural human persons; (ii) include any information that would be considered PHI under the HIPAA Rules; or (iii) include any personally identifiable data. Vivalink and the Products collect, generate, and derive Usage Data for Vivalink’s business purposes, including to (i) track usage; (ii) provide support for the Products; (iii) monitor the performance and stability of the Products; (iv) prevent or address technical issues with the Products; and (v) improve the Products and develop derivative and new products and services.
- a. Fees. The fees payable for evaluation license are set forth in the Agreement. The fees are due prior to shipment of the Products.
4. Proprietary Rights.
- b. Taxes. Customer shall pay all taxes associated with its purchases hereunder. If Vivalink has a legal obligation to pay or collect taxes for which Customer is responsible, Vivalink may invoice Customer, and Customer will pay that amount unless Customer provides Vivalink with a valid tax exemption certificate authorized by the appropriate taxing authority.
- a. Ownership of Vivalink Materials. As between Customer and Vivalink and subject to Customer’s limited rights under this Agreement, all rights, title, and ownership in and to the Vivalink Materials and any parts or components thereof as well as any modifications, customizations, or improvements to Vivalink Materials, including all intellectual property rights embodied therein, will remain exclusively at all times with Vivalink. No rights are granted to the Customer other than as expressly set forth in this Agreement. Customer shall promptly notify Vivalink of any claim which may be adverse to Vivalink’s interest in Vivalink Materials.
- b. Feedback. If Customer provides any feedback to Vivalink concerning the functionality or performance of the Products (including identifying potential errors and improvements or the Documentation), the Customer hereby assigns to Vivalink all right, title, and interest in and to such feedback, and Vivalink is free to use such feedback without payment or restriction.
- c. Customer Data. As between Customer and Vivalink, Customer owns all rights, title, and interest to Customer Data. Customer hereby grants Vivalink the right to collect, use, store, disclose, transmit, and otherwise process Customer Data to provide the Product and as otherwise provided for under this Agreement, including to collect, generate, and derive Usage Data. Vivalink may use Customer Data in an aggregated and anonymized manner in connection with its and its affiliates’ internal business purposes, including without limitation, to improve the Products and develop derivative and new products and services and prepare promotional or advertising materials for the Products or other Vivalink offerings.
5. Term and Termination.
- d. Usage Data. As between the parties, Vivalink owns all rights, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Products made based on the Usage Data.
- a. Term. This Agreement commences on the Effective Date and, unless otherwise terminated, continues for the Evaluation Term. The Agreement and license expire at the end of the Evaluation Term.
- b. Termination. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach of this Agreement, if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- c. Effect of Termination. Upon the effective date of termination of the Agreement: (i) Customer will immediately cease using the Products; (ii) Customer will return the Products to Vivalink; and (iii) any and all outstanding payment obligations of Customer under this Agreement will become due immediately. Termination for material breach will not preclude the non-breaching party from pursuing any and all remedies available to it at law or in equity.
6. Representations and Warranties.
- d. The following provisions will survive termination of this Agreement: sections 3, 4, 5, 7, and 8..
- a. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party; (ii) it has obtained all applicable rights, licenses, consents, permissions, and waivers necessary to meet its obligations under this Agreement; and (iii) it is in compliance with, and shall not violate, any applicable law or regulation in connection with its performance under this Agreement.
- b. Mutual Representations and Warranties. Each party represents and warrants that: (i) it will comply with all applicable privacy and data protection laws and regulations applicable to the Products; and (ii) it has provided all notices to, and obtained all consents, authorizations, permissions from, third parties that are required to grant the other party the rights, titles, and interests granted in this Agreement with respect to the Products and Customer Data.
7. Limitation of Liability.
- c. Disclaimers. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, VIVALINK DISCLAIMS ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SUPPLIERS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE VIVALINK MATERIALS OR ANY PORTION THEREOF, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIVALINK DOES NOT WARRANT THAT ANY USE OF THE PRODUCTS OR PRODUCT SOFTWARE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS OR HARMFUL COMPONENTS. VIVALINK DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR PRODUCT SOFTWARE OR ANY PORTION THEREOF WILL BE APPROVED OR ACCEPTED BY ANY GOVERNMENTAL OR REGULATORY BODY OR THAT ANY SUCH APPROVAL WILL NOT BE REVOKED. VIVALINK DOES NOT GUARANTEE ANY SPECIFIC RESULTS OF ANY USE OF THE PRODUCTS OR ANY PORTION THEREOF. NO ADVICE OR INFORMATION THE COMPANY OBTAINS FROM VIVALINK NOT EXPRESSLY SET FORTH IN THIS AGREEMENT WILL CREATE ANY WARRANTY. COMPANY UNDERSTANDS AND AGREES THAT COMPANY TAKES COMPLETE RESPONSIBILITY FOR ITS USERS’ USE OF THE PRODUCTS OR ANY PORTION THEREOF AND ANY USE IS AT THE COMPANY’S AND ITS USER’S OWN DISCRETION AND RISK.
- EXCEPT FOR BREACH OF THE PROPRIETARY RIGHTS TERMS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, AND ANY CLAIMS ARISING OUT OF THIS AGREEMENT WHETHER ARISING OUT OF A BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST REVENUES, PROFITS, SAVINGS OR BUSINESS) OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR BREACH OF PROPRIETARY RIGHTS TERMS HEREIN, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE COMPANY OR ANY OTHER PARTY UNDER THIS AGREEMENT WHETHER ARISING OUT OF A BREACH OF CONTRACT, BREACH OF WARRANTY, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID OR PAYABLE TO VIVALINK UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- a. Governing Law. This Agreement will be governed by California law (without giving effect to its conflicts of laws principles the result of which would permit the application of a law other than United States federal law or California law to this Agreement). Each party hereby irrevocably agrees that all claims, proceedings, and disputes arising in connection with this Agreement shall be brought in a federal or state court located in California.
- b. Force Majeure. If an act of God, war, riot, civil commotion, explosion, fire, government action, court order, pandemic, epidemic or other disease outbreak, any labor shortage related to any of the foregoing, or other similar circumstance beyond a party’s reasonable control (a “Force Majeure Event”) prevents, hinders, or delays performance of either party’s obligations under this Agreement (except for the obligation to pay Fees) for more than thirty (30) days at any time during the Evaluation Term, either party will have the right to terminate the affected portion of this Agreement as of the date specified by such party in a written notice of termination to the other party; provided the party claiming a Force Majeure Event will take all commercially reasonable actions that may be necessary to mitigate the impact of its non-performance.
- c. Notice. Any notice required or permitted to be given under this Agreement will be in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Commercial Terms and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
- d. Assignment. This Agreement is not assignable or transferable, in whole or in part, by Customer, whether involuntarily, by merger, operation of law, or otherwise, without Vivalink’s prior written consent, which may be withheld by Vivalink for any reason whatsoever or for no reason at all. Any amalgamation or merger of a party with any third party, or the purchase or all or substantially all of the assets of a party, will be deemed an assignment of this Agreement requiring Vivalink’s consent. Any attempted transfer in violation of this section shall be null and void and of no force or effect whatsoever.
- e. Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement.
- f. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- g. Entire Agreement; Modification. This Agreement contains the entire, final, integrated, and exclusive agreement between the parties as to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties. No amendments, or modifications to the Agreement will be valid and binding except if in writing and signed by authorized representatives of the parties.
- h. Interpretation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Each party acknowledges that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.
- i. Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to act as an agent or have control over the day-to-day activities of the other party.
- j. Counterparts. The Agreement may be executed in counterparts, each of which shall constitute an original and both of which together shall constitute one and the same instrument. For purposes of the Agreement, a facsimile or electronic copy or PDF of a party’s signature printed by a receiving facsimile machine or printer shall be deemed an original signature.