ENGAGE SOFTWARE
HIPERWALL, INC.
END USER LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement ("Agreement") is a legally enforceable contract between You (either an individual or an entity) and Hiperwall, Inc. ("Hiperwall") regarding the use of Hiperwall's software programs accompanying or provided under this Agreement including, without limitation, Engage software, the corresponding installers, and client software downloaded to web browsers, together with the associated media, corresponding Documentation, technical configurations, and technical data (collectively, the "Engage Software"). "Documentation" means the user's guide and other documentation (including print and online), if any, provided to you with the Engage Software.
BY INSTALLING, COPYING OR OTHERWISE USING ENGAGE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL SUCH TERMS, DO NOT INSTALL OR USE ENGAGE SOFTWARE.
1. License Grant. Subject to the terms and conditions of this Agreement, Hiperwall grants you a non-exclusive, non-transferable, non-sublicensable, limited license to install and use the Engage Software, in object code version only, in the following manner:
(a) Engage Host may be copied and installed on a computer that will be used as a meeting host and is connected to a display showing the meeting and collaboration content.
(b) Engage web client software is automatically executed in a web browser when that browser connects to the Engage Host software.
(c) Other Engage client software may be installed and used on devices, including tablets and smartphones, only for use with the Engage Software.
The use of Engage Software is governed by a license key issued by Hiperwall that defines the duration of the license, which versions of Engage Software the license is valid for, and which features of Engage Software are enabled. Engage Software may not be used except in conjunction with such a license key. The license key defines how many instances of the Engage Host software may be operating simultaneously per the license key that You purchased. The Engage web client software and other Engage client software may be installed on and used on as many devices and browsers as needed to operate with Your licensed Engage Hosts.
2. Backup Copies. You may make one backup copy of the Engage Software, provided your backup copy is not installed or used on any computer and further provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Engage Software. You may not transfer the rights to a backup copy unless you transfer all rights in the Engage Software as provided in this Agreement.
3. Ownership. You acknowledge that the Engage Software and any copies that you are authorized by Hiperwall to make are the intellectual property of, and are owned by, Hiperwall and its licensors. The structure, sequence and organization of the Engage Software are the valuable trade secrets and confidential information of Hiperwall and its licensors. Engage Software is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is used. You acknowledge that Hiperwall, or its licensors, retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Engage Software. You will take no actions which adversely affect Hiperwall's intellectual property rights in the Engage Software. This Agreement is a license and not an agreement for sale. No title to, or ownership of, the Engage Software, or any intellectual property rights subsisting therein, is transferred to you.
4. Restrictions. Engage Software is licensed solely for internal use within your organization and any other use including for third parties is expressly prohibited. Hiperwall and its licensors reserve all rights not expressly granted to you in this Agreement. Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) make copies of the Engage Software except as expressly set forth in this Agreement, or (ii) disassemble, decompile, reverse engineer, or translate any part of the Engage Software, or otherwise attempt to reconstruct or discover the source code of the Engage Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or (iii) modify or create derivative works based upon the Engage Software, or (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Engage Software, or (v) rent, lease, lend, or use the Engage Software, or any part thereof, for timesharing or bureau use, or (vi) allow a third party to copy, access, or use the Software (except as expressly provided in this Agreement), or (vi) alter or remove any copyright, trademark or other proprietary notice which may appear on the Engage Software, or (vii) take any action that would cause the Engage Software to be placed in the public domain or become subject to open source license agreement.
5. Updates. Except as otherwise expressly provided herein, this Agreement will govern any updates and upgrades to the Engage Software that may be provided to you in accordance with Hiperwall's then-current maintenance and support policies, unless such updates and upgrades are provided under a separate license agreement. You may use such updates or upgrades only in conjunction with your then-existing Engage Software licensed under this Agreement. The Engage Software and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Engage Software to exceed the scope of your original license. Any other software that may be provided with the Engage Software that is associated with a separate end-user license agreement is licensed to you under the terms of that separate license agreement.
6. No Support. Except as expressly required by applicable law, nothing in this Agreement entitles you to any support, maintenance or new versions of the Software. You may contact Hiperwall to determine the availability of support, maintenance, and new versions, and the fees terms and conditions that would apply.
7. Limited Warranty. Hiperwall warrants that the original copy of the Engage Software will perform substantially in accordance with the accompanying Documentation for a period of one (1) year from the date of receipt. Hiperwall does not warrant that functions contained in the Engage Software will meet your requirements or that the operation of the Engage Software will be error-free or uninterrupted. As your exclusive remedy for breach of Hiperwall's warranty, Hiperwall shall use reasonable efforts to provide maintenance, modifications or fixes in a timely manner, or at its option replace the Engage Software, provided the Engage Software is returned with a copy of your receipt. This limited warranty is void if failure of the Engage Software has resulted from accident, abuse, alteration or misapplication. Any replacement software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Hiperwall is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Engage Software or any upgrade or update is procured, nor is Hiperwall responsible for problems which occur as a result of the use of the Engage Software in conjunction with software of third parties or with hardware, which does not meet Hiperwall's specific requirements.
8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED ABOVE IN SECTION 6, THE ENGAGE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER HIPERWALL NOR ITS LICENSORS REPRESENT OR WARRANT THAT THE ENGAGE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you.
9. Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, EXCEPT FOR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, YOUR BREACH OF SECTIONS 1 THOUGH 4 ABOVE, (I) IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS AND AFFILAITES BE LIABLE 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 LOSS) UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (II) IN NO EVENT SHALL HIPERWALL'S ENTIRE LIABILITY TO YOU OR ANY OTHER PARTY FOR LOSS OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF THIS AGREEMENT SHALL EXCEED THE LICENSE FEE ACTUALLY PAID OR PAYABLE BY YOU FOR THE USE OF THE ENGAGE SOFTWARE, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (III) IN NO EVENT SHALL YOUR ENTIRE LIABILITY TO HIPERWALL FOR LOSS OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF THIS AGREEMENT SHALL EXCEED THE LICENSE FEE ACTUALLY PAID OR PAYABLE BY YOU FOR THE USE OF THE ENGAGE SOFTWARE. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, either party's liability shall be limited to the greatest extent permitted by law. This section shall survive the termination of the Agreement.
10. Indemnification. Hiperwall agrees to defend, indemnify and hold You harmless against any and all losses, damages and costs arising out of a third party claim that the Engage Software infringes an intellectual property or proprietary right, provided that: (a) You promptly notify Hiperwall within five (5) days of the claim; (b) Hiperwall has sole control of the defense and all related settlement negotiations; provided, that Hiperwall shall not make admissions on Your part, or obligate You to the payment of money, without Your prior written approval; and (c) You, at Hiperwall's cost and expense, shall provide Hiperwall with reasonable assistance and information to perform Hiperwall's obligations under this section. HIPERWALL shall have no liability for any claim of infringement based in whole or in part upon (i) the modification of the Engage Software by anyone other than Hiperwall or Hiperwall's employees, agents, contractors, or subcontractors or (ii) the use of the Engage Software, or any portion thereof: (a) outside the scope of the license granted hereunder, (b) in combination with other hardware or software not required for the Engage Software to adequately perform, required or recommended by the Documentation or otherwise specified and/or approved in writing by Hiperwall, or (c) if the infringement would have been avoided by the use of a current or unaltered update or release of the Engage Software and (d) in a manner other than for which it was designed or specified by Hiperwall in the Documentation. Hiperwall shall have the right, at its option and expense to (i) replace the Engage Software with a non-infringing functionally equivalent product; (ii) modify the Engage Software so it becomes non-infringing without affecting its functionality in any material respect; (iii) obtain a license for You to use the Hiperwall Software or (iv) terminate (on no less than ten (10) days notice to You) this Agreement and promptly pay You an amount equal to the license fee paid by You for use of the Engage Software under this Agreement, less charges for the previous usage of the Engage Software based on a three (3) year amortization from delivery of the affected Engage Software. Hiperwall shall have no liability for any settlement entered into without Hiperwall's prior consent.
11. Sole Remedy and Allocation of Risk. YOUR SOLE AND EXCLUSIVE REMEDY AND HIPERWALL'S SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS AGREEMENT. This Agreement defines a mutually agreed-upon allocation of risk.
12. Third Party Licenses. You understand and acknowledge that Engage Software contains certain third party programs or code ("Third Party Software") that are used by Hiperwall in accordance with the terms and conditions of separate and distinct license agreements, copies of which are contained in or can be found in the licenses folder accompanying the Engage Software ("Thirty Party License"). You further agree that, although provided to you by Hiperwall with the Engage Software, the Third Party Licenses govern any use of the corresponding Third Party Software. The ownership terms in Section 3 and restrictions in Section 4 do not apply to Third Party Software. If there is a conflict between this Agreement and the terms of any Third Party License, the provisions of the Third Party License shall prevail with respect to the use of the corresponding Third Party Software.
13. Export Restrictions. You agree to comply with all export and reexport restrictions and regulations ("Export Restrictions") imposed by the United States or any other country in which you conduct business. Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Hiperwall regarding an ultimate destination of the Engage Software, you represent and warrant that you understand the U.S. law currently prohibits the export or reexport, directly or indirectly (including via remote access) of U.S. origin products and technology to certain proscribed countries (including Cuba, Iran, Sudan, North Korea and Syria and/or any other country that may become subject to an embargo by the United States), entities, organizations and individuals, without prior authorization from the U.S. Government. You will not commit any act or omission that will result in a breach of any such Export Restrictions. Your breach of this clause shall constitute cause for immediate termination of this Agreement.
14. High Risk Activities. The Engage Software 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 the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Hiperwall specifically disclaims any express or implied warranty of fitness for High Risk Activities.
15. Termination. The licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this Agreement. In such event, you must immediately uninstall and return the Engage Software, including all Documentation and original media, to Hiperwall. This shall not limit or affect any remedy available to Hiperwall for your breach of this Agreement.
16. Miscellaneous.
(a) If you are a unit or agency of the United States Government, the following applies: The Engage Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in Subparagraph 252.227-7013 (c)(1)(ii) of the Rights in Technical Data and Computer Software at DFARS, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Hiperwall, Inc.
(b) This Agreement shall be governed by the laws of the State of California, exclusive of its choice of law rules. Any dispute between you and Hiperwall regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts sitting in the County of Orange in the State of California. In any such action, the prevailing party will be entitled to costs and attorneys' fees.
(c) You may not assign, sublicense, or transfer this Agreement, the Engage Software, or any rights or obligations hereunder without prior written consent of Hiperwall, which shall not be unreasonably withheld. Any such attempted assignment, sublicense, or transfer without Hiperwall's consent will be null and void. Hiperwall may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer without Hiperwall's consent.
(d) This Agreement is in the English language only, and will only be provided in the English language, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
(d) The Agreement constitutes the final and complete understanding between you and Hiperwall with respect to the subject matter of this Agreement. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.
(e) If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
(f) Failure or delay on the part of either party to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of such party.
(g) No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this Agreement.