Terms & Conditions
USER LICENSE AGREEMENT
By accepting this agreement, the accepting company or organization (“Licensee”) hereby consents to and enters into this USER LICENSE AGREEMENT (“Agreement”) on the date of acceptance (the “Effective Date”), by and between VOS System, LLC, a Delaware limited liability company with offices located at 304 W University Ave, Gainesville, FL 32601, USA (hereafter, “VOS”), and Licensee.
WHEREAS, VOS offers Wearable Devices and Gateway/Hub Equipment, along with access to Database information and Applications software, all as defined herein (together the “Technology”), which enable licensees to trace inter-personal proximity contacts among wearers of Wearable Devices, and in some cases to provide wearers with audible or vibratory alerts when an interpersonal proximity contact is being detected or recorded, and in some cases to provide wearers of the Wearable Devices alerts if they are entering an area in which alerts are activated within defined parameters (together the “Service”); and
WHEREAS, VOS is willing to provide Licensee access to use the Technology and Service under the terms and conditions of this Agreement; and
In consideration of the mutual benefits and obligations set forth below (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows:
1. Definitions: Capitalized terms not elsewhere defined herein shall have the following definitions:
1.1 “Wearable Devices” shall mean the hardware and related firmware and antennae, including components enabling Bluetooth tracking and interaction, and connection with Gateway/Hub Equipment, provided by VOS to Licensee, which enable Licensee to utilize the benefits of the Service;
1.2 “Gateway/Hub Equipment” shall mean the hardware and related firmware and antennae, including components enabling cellular or wi-fi or other similar modes of transmission of data, connection to the Wearable Devices, and location recording capabilities, which are provided by VOS to Licensee, which enable Licensee to utilize the benefits of the Service;
1.3 “Equipment” shall mean the Wearable Devices and Gateway/Hub Equipment provided by VOS to Licensee, which enable Licensee to utilize the benefits of the Service;
1.4 “Applications” shall mean the computer software Applicationss, either for desktop or mobile-device usage, offered by VOS which enables Licensee to access and utilize data from the Equipment in connection with the Service;
1.5 “Database” shall mean any computer server databases necessary for Licensee to utilize the Equipment or the Applicationss in connection with the Service;
1.6 “Credentials” shall mean any license keys, API access, user name(s) and/or password(s) necessary for Licensee to utilize the Equipment or access the Database or Applicationss in connection with the Service.
2. License. Subject to the terms of this Agreement, and as long as Licensee pays all of the fees to VOS as described hereunder, VOS grants Licensee a limited, non-exclusive, non-transferable right and license, with a limited right to sublicense (but only as expressly provided in this Section 2), to access and use the Equipment and/or Database and/or Applications in connection with the Service during the Term.
2.1 Sublicense. VOS hereby grants Licensee a limited right to sublicense its rights to the Technology to any subsidiary of Licensee or entity which is acquiring control of Licensee where such sublicensee is approved of in advance, in writing by VOS (each a “Sublicensee”). Licensee agrees that prior to granting access to the Technology, any such Sublicensee will be required to enter into an agreement with Licensee limiting the Sublicensee’s access to the Equipment and Service and protecting VOS’s rights, title and interest, in the Technology and Service in a manner that is at least as protective as this Agreement. Licensee shall be ultimately responsible for Sublicensee’s use of the Equipment and Service.
2.2 Access. VOS will provide to Licensee any Credentials necessary for Licensee to utilize the Equipment or to access the Database or Applications in connection with the Service. Licensee agrees to promptly notify VOS of any unauthorized use of the Credentials provided to Licensee, and Licensee shall be responsible for all use thereof prior to such notification. VOS shall not be liable for any loss or damage arising from any unauthorized use of the Equipment or Service prior to Licensee notifying VOS of the unauthorized use.
2.3 Additional Equipment. Except for the Equipment described in Section 3 herein, Licensee shall be responsible for providing any additional hardware, software or equipment necessary to utilize the Equipment or access the Database or Applications and/or otherwise use the Service. Licensee acknowledges that the Equipment, Database and/or Applications may be operated on a hosted basis or on a software as a service (SaaS) basis. If Licensee elects to operate the Equipment or Database or Applications on a hosted basis, Licensee is solely responsible for providing any servers, computers or other hardware, which meet the technical requirements to utilize the Equipment or Applications, at its sole expense. If Licensee elects to operate the Equipment, Database or Applications on a SaaS basis, Licensee is responsible for securing, at its sole expense, sufficient access to the internet necessary for use of the Equipment, Database or Applications.
2.4 Downtime. VOS shall use commercially reasonable efforts to maintain operation of the Database and/or Applications, when provided on a SaaS basis, on a 24-hour per day, 365 days per year basis. From time to time, however, and as may be necessary to maintain the proper operation of the Service, VOS may disable the server(s) housing the Database and/or the Applications for repairs, upgrades or routine maintenance (such events, “Scheduled Downtime”). VOS will use commercially reasonable efforts to minimize the impact of such Scheduled Downtime and to inform Licensee in advance of such Scheduled Downtime. Notwithstanding the foregoing, VOS may disable the server(s) housing the Database or the Applications or parts of the Service at any time if VOS determines in its sole discretion that such disabling is necessary to protect the servers or the Database or Applications, or VOS or Licensee against spoofing attacks, SQL injection attacks, trojan horses, key loggers, network tracers, computer viruses, buffer overflow attacks or any other electronic attack.
2.5 Updates. From time to time, VOS may, but is not required to, update the firmware on the Equipment, or the server(s) housing the Database, or the Applications, in order to, among other things, correct errors, improve the performance of the Service, increase the capacity of the Service, add additional features to the Service and respond to any security issues.
3.1 Delivery; Acceptance. Licensee shall be provided the Equipment described in an authorized Purchase Order from the Licensee and accepted in writing by VOS, or in an Invoice provided by VOS and accepted in writing by Licensee, which documents are incorporated herein by reference. Licensee is responsible for inspecting Equipment upon delivery and identifying any defects, damage or other problems with the Equipment within thirty (30) business days from delivery. If no defects, damage or other problems are reported within this time period, Licensee will be deemed to have accepted the Equipment in working order.
3.2 Ownership; Loss or Damage. Except as expressly provided herein, upon receipt of payment by VOS for Equipment, Licensee shall be the owner of all right, title and interest in and to the Equipment. Notwithstanding the foregoing, Licensee acknowledges and agrees that the Equipment is being provided to Licensee solely to facilitate Licensee’s use of the Service. After the time the Equipment has been accepted by Licensee, Licensee shall be responsible for any and all loss, theft or damage to or destruction of the Equipment from any cause not covered by an express warranty contained herein (each occurrence a “Loss”). Licensee will notify VOS of any Loss within thirty (30) days. VOS will, at its exclusive option, repair or replace the Equipment that is subject to a covered by an express warranty contained herein. Licensee acknowledges and agrees that any Loss will not modify its obligation to make all payments required under this Agreement throughout the remaining Term.
4. Ownership and Restrictions on Use.
4.1 Ownership. Under the limited license granted herein, Licensee shall protect all rights, title and interest of VOS to the Technology by ensuring that Equipment is not provided to any other party other than under an approved Sublicense as provided in Section 2.
4.2 Restrictions on Use. Except as expressly provided herein, no other right to access or utilize the Equipment or Database or Applications is granted under this Agreement, and Licensee shall not attempt to access or utilize the Equipment, Database or Applications other than as provided herein and for the intended purpose of the Service. Licensee shall not provide access to the Equipment or Database or Applications to any third party unless expressly authorized by VOS. Licensee may not post, copy or transfer information produced by the Equipment or Database or Applications to any public forum or website. Licensee acknowledges and agrees that except as expressly provided herein, all rights in and to the Technology and Database and Applications (and its related information) belongs exclusively to VOS, and Licensee shall not at any time do, or omit, or suffer to be done or omitted, any act or thing which may impair VOS’s rights in and to the Database or Applications. Licensee specifically agrees that Licensee shall not use, or permit to be used, the Equipment or Database or Applications, or VOS’s Confidential Information (as defined herein), for any other purpose than using the Service, including without limitation, to reverse engineer, disassemble, decompile, or design around the Equipment or Database or Applications, or other intellectual property rights of VOS. VOS expressly reserves and retains all other rights in and to the Technology not expressly granted herein. Licensee shall not acquire and shall not claim any title to the Service, Database or Applications, and the license granted herein is not intended to be and shall not be construed as an assignment, in part or in whole, of the Technology or Service.
5. Additional Obligations of Parties.
5.1 Support. VOS shall provide support in connection with the Equipment and Service as set forth in the approved Purchase Order or Invoice for the Equipment and Service.
5.2 Integration. VOS shall provide the integration services set forth in the approved Purchase Order or Invoice for the Equipment and Service.
5.3 Confidential Information. In the event the parties have entered into a separate Nondisclosure Agreement (“NDA”) then “Confidential Information” shall retain the meaning set forth in the NDA and the NDA shall remain in effect until the later to occur of either the date on which all obligations of confidentiality under the NDA would terminate per the terms of the NDA or two (2) years from the date of termination of this Agreement.
In the In the event the parties have not entered into a separate Nondisclosure Agreement, then:
- “Affiliate” means any Person who, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with any other Person;
- “Confidential Information” means all information, in whatever form or manner presented (including without limitation written, oral or electronic disclosures, or samples of products or equipment), including but not limited to firmware, software or algorithms, code, customers lists, databases, intellectual property, mobile Applications, processes, research, customer information, business plans, equipment, product samples and specifications, financial information, know-how, trade secrets, or technical and non-technical materials that relate to a party’s (or its Affiliate’s) business or development activities and programs, disclosed by a Disclosing Party hereunder;
- “Control” means (a) the direct or indirect legal or beneficial ownership of more than fifty percent (50%) of (i) the ownership interests in a Person or (ii) the outstanding voting rights in a Person or (b) the power to otherwise direct the business activities of a Person;
- “Disclosing Party” means the party that discloses Confidential Information to the other party;
- “Person” means any individual, corporation, limited liability company, partnership, joint venture, association or other legal entity;
- “Permitted Users” means, with respect to a party, its Affiliates, directors, officers, employees and/or third-party consultants (including without limitation legal, financial or accounting advisors) or contractors who (i) shall reasonably need to know Confidential Information in order to evaluate the Collaboration, and (ii) are under obligations of confidentiality substantially similar to those contained herein, and;
- “Receiving Party” means the party who receives Confidential Information from the other party.
Each party shall treat the Confidential Information of the other party as strictly confidential and shall safeguard such Confidential Information with the same degree of care with which it holds its own confidential information, but in no event less than reasonable care. The Receiving Party shall not, without the prior written consent of the Disclosing Party, (i) disclose to any third party any of the Disclosing Party’s Confidential Information, or (ii) use such Confidential Information for any purpose other than in connection with the Collaboration. The Receiving Party is not permitted to include the Confidential Information of the Disclosing Party in any application for intellectual property rights filed by the Receiving Party, even if such inclusion would be required in order to obtain such intellectual property rights. A Receiving Party’s obligations regarding the Disclosing Party’s Confidential Information shall not apply to the extent that the Receiving Party can demonstrate that the Confidential Information: a) was in the possession of the Receiving Party or any of its Affiliates prior to the time of disclosure; b) is or becomes public knowledge through no fault, omission or other act of the Receiving Party or any of its Affiliates; c) os obtained from a third party, to Receiving Party’s knowledge, under no obligation of confidentiality with respect to the Confidential Information; or d) was independently developed by or for the Receiving Party or any of its Affiliates without violating the terms of this Agreement. If the Receiving Party or a Permitted User is requested to disclose the Confidential Information of the Disclosing Party or the substance of this Agreement (a) in connection with a legal or administrative proceeding or otherwise to comply with a requirement under the law, or (b) pursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization (and, in the case of Permitted Users that are accounting firms, the applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state or other comparable boards of accountancy or obligations thereunder), the Receiving Party will to the extent legally permissible give the Disclosing Party prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Agreement. No such notice shall be required by a Permitted User if such Permitted User is requested or required to disclose Confidential Information in the course of routine supervisory examinations or regulatory oversight by banking regulatory authorities with jurisdiction over such Permitted User. If the Disclosing Party seeks a protective order or other remedy, the Receiving Party, at the Disclosing Party’s expense, will cooperate with and assist the Disclosing Party in such efforts. If the Disclosing Party fails to obtain a protective order or waives compliance with the relevant provisions of this Agreement, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel determines it is required to disclose. All obligations of confidentiality hereunder will terminate ten (10) years from the last disclosure of Confidential Information hereunder. Receiving Party shall be entitled during its evaluation of the Confidential Information of Disclosing Party to disclose such Confidential Information to Permitted Users of the Receiving Party. Receiving Party shall be liable for failure of any of its Permitted Users to so maintain the confidentiality of Disclosing Party’s Confidential Information and otherwise comply with any explicitly applicable terms of this Agreement. It is understood and agreed that the rights and obligations of each party will inure to the benefit of, and be binding upon, each party’s Affiliates with respect to Confidential Information disclosed or received related to the Collaboration.
6. Service and Subscription Fees.
6.1 Fees. Licensee agrees to pay the subscription or service or license fees or other fees set forth in the approved Purchase Order or Invoice for the Equipment and Service.
6.2 Collection. Unless otherwise mutually agreed to in writing by the parties, all payments to VOS shall be due no later than thirty (30) days from the date of invoice or provision of service. VOS may charge Licensee interest on the outstanding balance of any overdue fees, charges or expenses at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower. Licensee will reimburse VOS for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts owed by Licensee. All payment obligations will survive termination or expiration of this Agreement.
7. Term and Termination.
7.1 Term. This Agreement shall commence upon the Effective Date and continue for an initial term as set forth in the approved Purchase Order or Invoice for the Equipment and Service., unless earlier terminated in accordance with this Section 7. Thereafter, this Agreement shall be renewed by payment to VOS by Licensee for ongoing services, subscriptions or equipment as mutually agreed upon (each such successive term a “Renewal Term”). As used herein, the Initial Term and any Renewal Term may be collectively referred to as the “Term”.
7.2 Termination for Breach. Either party may terminate this Agreement effective immediately if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching Party identifying the nature of the breach.
7.3 Effect of Termination. Upon termination of this Agreement, Licensee shall immediately terminate any use of the Service. If the Service or Applications was provided to Licensee on a hosted basis, Licensee shall delete and completely remove the Applications from all of its hardware. Licensee shall have no further right, license or privilege to access or use the Equipment or Applications or Service. Licensee shall not be entitled to any refund of amounts paid prior to termination. All provisions in Sections stating survival of termination shall survive the termination of this Agreement.
8. Warranties; Limit of Liability.
8.1 Limited Warranties. VOS and Licensee each represent, warrant and covenant to the other that: (i) it is in good standing in the state or country of its organization and qualified to do business in every jurisdiction in which it is required to be qualified; (ii) it has full power and authority to enter into this Agreement; (iii) the execution and performance by it of its obligations under this Agreement will not constitute a breach of any other agreement or a violation of any ordinance, statute, law, or regulation to which it is a party or by which it is bound; (iv) as of the Effective Date and until termination or expiration of the Term, it is and will remain in compliance with and abide by any and all statutes, laws, ordinances, rules, and regulations promulgated by any government entity which are applicable to it. VOS represents, warrants, and covenants to Licensee that the Equipment or Applications will conform to any written specifications provided in Exhibit A hereto, which is incorporated herein by reference. Licensee’s exclusive remedy for a breach of this warranty shall be to have VOS update or modify the Equipment or Applications to correct the non-conformity with the specifications. VOS further represents, warrants, and covenants that unless damaged by Licensee beyond normal wear and tear, the Equipment will be free of any material defects in materials and workmanship and capable for use in connection with the Service for the Term of the Agreement. Licensee’s exclusive remedy for a breach of this warranty shall be to have VOS repair or replace any necessary Equipment at its own expense.
8.2 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE THE SERVICE, EQUIPMENT OR APPLICATIONS AND EQUIPMENT IS OFFERED TO LICENSEE “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED. LICENSEE ACKNOWLEDGES THAT VOS MAKES NO GUARANTEE THAT USE OF THE SERVICE WILL ENABLE LICENSEE TO FULFILL ITS OBLIGATIONS TO ITS SUBLICENSEES OR CUSTOMERS AND THAT LICENSEE IS SOLELY RESPONSIBLE FOR ENSURING SUCH OBLIGATIONS ARE MET.
8.3 NO LIABILITY. EXCEPT AS MAY ARISE (I) FROM A BREACH OF SECTIONS 2, 2.1, 4 OR 5.3; OR THE INDEMNITY LIABILITY IN SECTION 9: (1) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID, DUE AND PAYABLE BY LICENSEE TO VOS DURING THE INITIAL TERM OF THIS AGREEMENT; AND (2) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY.
9.1 Indemnification by VOS. VOS shall indemnify, defend and hold harmless Licensee from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against Licensee alleging that any claim that the Service (or Licensee’s use thereof) infringes such third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right (each, an “Infringement Claim”). Without limiting the foregoing, if VOS receives notice of an Infringement Claim, VOS shall have the right, at its option and sole expense, to obtain for Licensee (and its Licensee Users) the right to continue to use the Service or modify or replace the Service with an alternative, non-infringing solution that performs all of the same material functionality.
9.2 Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless VOS from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against VOS resulting from the conduct of Licensee’s business while using the Service, including, without limitation, personal injury actions, wrongful death action, property damage, breach of contract, employee or workplace disputes.
9.3 No Liability for Infections. Specifically, Licensee understands and agrees that the Equipment and System is not intended to be used to prevent, nor designed to prevent, infections among wearers of the Wearable Devices, nor is the Equipment and System able to guarantee that employees, staff, volunteers or other wearers of the Wearable Devices will have improved healthcare outcomes in the event of an infection. Licensee shall indemnify, defend and hold harmless VOS from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party related to infections or transmission of disease.
10. Miscellaneous. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, other than an NDA as referred to in section 5.3, with respect to such subject matter and may only be amended by a writing executed by both parties. This Agreement shall be considered executed by both parties hereto upon acceptance of the Agreement in an electronic format.
11. Governing Law. This Agreement shall be interpreted, construed and governed according to the laws of the State of Delaware, USA, without reference to conflicts of law principles thereof.
12. Assignment; Parties in Interest. This Agreement may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either Party shall be entitled to assign this Agreement, without the prior written consent of the other Party, to any successor corporation or other legal entity which succeeds as a going concern to the business presently conducted by such Party pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor corporation assumes in writing such party’s obligations hereunder. Except as specifically provided herein, this Agreement is not intended to and does not create any rights in favor of any person or legal entity not a party hereto.
13. Execution. The individual executing this Agreement on behalf of each Party hereby represents and warrants that he or she is duly authorized by all necessary action to execute this Agreement on behalf of his respective principal. Further, each party hereto represents to the other party that the individual executing this Agreement on the behalf of the given party is duly authorized to do so and that all the terms and conditions of this Agreement are mutually agreed to and shall be binding with all respects on such party.
14. Relationship of the Parties. For all purposes hereof and in the performance of its obligations under this Agreement, VOS is and shall remain an independent provider of equipment and service contractor and nothing in this Agreement shall be deemed or construed to create an employment relationship, joint venture, or partnership relationship between Licensee and VOS. Except as provided herein, neither Party shall have any power of authority to bind or commit the other Party.
15. Force Majeure. Neither Party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, where and to the extent that such a failure or delay results from causes outside the control of such Party. Such causes shall include, without limitation, delays caused by the other Party, acts of God, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion or the like.
16. Severability. The invalidity or unenforceability of any provision or part of any provision of this Agreement shall not affect the validity or enforceability of any other provision or part thereof and any such invalid or unenforceable provision or part thereof shall be deemed to be severable, and no provision or part thereof shall be deemed dependent upon any other provision or part thereof unless expressly provided for herein.