Master Software License and Services Agreement
This Master Software License and Services Agreement (“Agreement”) is a valid and legally binding agreement between FactualVR, with its principal place of business at 350 Warren St. Ste. #6, Jersey City, NJ 07302 (“FactualVR”), and you (“Customer” or “you”). YOU UNDERSTAND THAT YOU MUST ENTER INTO THIS AGREEMENT IN ORDER TO USE OR COPY THE SOFTWARE AS LICENSED IN SECTION 2 HEREUNDER. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT BY CLICKING THE “ACCEPT” BUTTON OR CHECKBOX, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. You further agree that the date on which you click the “ACCEPT” button shall be the effective date of this Agreement (“Effective Date”).
WHEREAS, FactualVR is the owner of a certain Software (as defined below) product that provides a virtual reality platform to help law enforcement and prosecutors accurately replicate and communicate the facts pertaining to a crime scene; and
WHEREAS, Customer desires to obtain a license in the Software, and FactualVR desires to grant a license for the Software program(s) specified herein; and
WHEREAS, Customer may also desire to obtain particular Services (as defined) as may be provided by FactualVR subject to this Agreement; and
NOW THEREFORE, the parties hereto mutually agree as follows:
- “Software” shall mean the software program(s) that you are installing via the installation program packaged with this Agreement in object code form, their database structure/schema, related documentation and all Upgrades, all owned by FactualVR.
- “Services” shall mean any support, consulting or other professional services concerning the Software or otherwise that FactualVR may provide to Customer pursuant to an SOW.
- “Statement of Work” or “SOW” shall mean an attachment to this Agreement of the general form of Exhibit A describing any Services to be provided by FactualVR to Customer, including without limitation the schedule and Fees (as defined below) for the Services and Software licensing (if any).
- “Upgrade” or “Upgrades” shall mean any new versions, fixes, enhancements, service packs or other revisions of the Software as may be released in the future at FactualVR’s sole discretion.
- “Affiliates” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with a party for as long as such relationship remains in effect.
Subject to the provisions of this Agreement, FactualVR hereby grants to Customer, and Customer accepts from FactualVR, a limited, non-exclusive, non-transferable and revocable license to use the Software. Except for Trial License use as described below, this grant of license may be subject to the payment of Fees (as defined herein) as may be specified in an SOW. This license grant is valid only during the Term (as defined herein). Under this Agreement:
- The Software may be used only by Customer, Affiliates, employees, third party contractors and clients; provided that Customer shall be solely responsible for the acts and omissions of its third party contractors and clients, and shall insure that any third party use of the Software complies with this Agreement.
- Customer may make one copy of the Software in machine-readable form solely for backup purposes. Any such backup copy of the Software must include all copyright notices and any other proprietary legends on the original copy of the Software.
- Trial License. Unless otherwise agreed by the parties in an SOW, upon installation of the Software, you may use the Software without charge for evaluation, subject to the terms and conditions of this Agreement (the “Trial License”).
Under this Agreement, Customer may not:
- Make or distribute copies of the Software other than as specified in Section 2;
- Decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human perceivable form, except as permitted by law;
- Attempt to remove any copyright notices or other reference to FactualVR’s ownership of the Software appearing on the Software or any materials and documentation provided therewith;
- Rent, lease, sublicense or resell the Software;
- Modify or create derivative works based upon the Software or any part thereof;
- Permit any third party to use the Software, or use the Software for purposes of processing the data of any third party; or
- Use the Products to violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, U.S. export laws.
- Support. FactualVR shall provide reasonable telephone and email support of the Software during the Term to answer questions and help troubleshoot any difficulties that you may have in using the Software. Live support will only be provided by FactualVR between the hours of 9:00 AM and 5:30 PM EST, on normal business workdays. The support under this Agreement does not include any on-site support by FactualVR, unless otherwise agreed in an SOW.
The parties may enter into follow-up or additional SOWs as desired to be negotiated as needed, should Customer require any of the following additional Services:
- On-site maintenance support;
- Training services;
- Assistance in installing, configuring or testing the Software;
- Services to convert Customer’s data for use with the Software; or
- Installation and training for Upgrades.
- Fees. In consideration for the grant of license and support herein, and for any Services that FactualVR may provide to Customer, Customer shall pay the Software license and Services fees (“Fees”) as may be specified in an applicable SOW attached hereto (if any).
- Term. This Agreement shall commence on the Effective Date and shall continue unless terminated pursuant to its terms (the “Term”).
- Termination for Convenience. Either party may terminate this Agreement at any time for convenience with or without cause and with or without prior written notice, so long as no SOW is outstanding. If any SOW is outstanding, then this Agreement may not be so terminated under this Section 6.2 until termination or expiration of such SOW in accordance with its terms.
- Termination for Cause. Either party will have the right to terminate this Agreement for cause at any time if the other party is in breach of any material term which such party fails to cure within thirty (30) days after receiving non-breaching party’s notice of the breach and intention to terminate. Such termination will become effective automatically upon expiration of the cure period in the absence of a cure.
- Effect of Termination. All rights in the Software granted to Customer hereunder shall cease upon any expiration or termination of this Agreement. Upon such expiration or termination, Customer shall immediately cease any use of the Software. Within ten (10) days after any such expiration or termination, Customer shall return or destroy all copies of the Software and any other related FactualVR Confidential Information or proprietary materials in its possession or control; and certify to FactualVR in writing that it no longer retains any copies of such Software or materials.
Regardless of who owns the media on which the Software resides or is distributed, the Software expressly remains the intellectual property of FactualVR, and FactualVR retains all right, title and interest in and to the Software and all copies thereof. FactualVR expressly reserves all rights not specifically granted in this Agreement.
- EXCEPT AS MAY BE SET FORTH IN AN SOW, THE SOFTWARE IS PROVIDED “AS IS”, AND FACTUALVR MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED. FACTUALVR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
- FactualVR makes no representation or warranty that the Software will: (i) be uninterrupted, timely, secure, complete, accurate or free from defects; (ii) operate in conjunction with hardware, operating systems, environments or software not specified or approved by FactualVR, or that are incompatible with the current release or update of the Software per FactualVR specifications; or (iii) operate correctly in the event that Customer fails to install new Upgrades provided by FactualVR.
- FactualVR expressly makes no warranties regarding protection of Customer data, and bears no responsibility for establishing procedures for the creation of back-up copies or security of Customer data or other information.
- No oral or written information or advice given by FactualVR, its dealers, agents or employees shall create a warranty of any kind, or in any way increase the scope of this warranty.
- EXCEPT REGARDING BREACH OF CONFIDENTIALITY, CUSTOMER’S MISUSE OR INFRINGEMENT OF THE SOFTWARE INTELLECTUAL PROPERTY RIGHTS, OR AS EXPRESSLY SPECIFIED IN AN SOW, NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE PARTY WITH THE ALLEGED LIABILITY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Confidential Information. Information is deemed “Confidential Information” hereunder if the receiving party to whom it is disclosed has actual knowledge or reasonably should know that the information is confidential or proprietary, including without limitation proprietary software, technical information, know-how, trade secrets, processes, marketing data, customer lists, business/financial information, and pricing information.
- Obligations of Non-Disclosure and Protection. Neither party shall disclose any Confidential Information of the other party to anyone other than the receiving party’s employees or subcontractors specifically performing under this Agreement. The receiving party shall protect the Confidential Information of the disclosing party with at least the same degree of care as it uses to protect its own Confidential Information of a similar nature, but in no case with less than a reasonable degree of care. The foregoing obligations shall not apply to any information that: 1) is publicly known at the time of its disclosure, 2) is lawfully received by the receiving party from a third party, not under an obligation of confidentiality to the disclosing party, 3) is published or otherwise made known to the public by the disclosing party, or 4) was generated independently by the receiving party before disclosure by the disclosing party.
- Disclosure Required By Law. The receiving party’s disclosure of any of the disclosing party’s Confidential Information: (1) in response to a valid order by a court or other governmental body; (2) as otherwise required by law; or (3) as necessary to establish the rights of either party under this Agreement shall not be a breach of this Agreement; so long as the receiving party provides prompt prior written notice thereof to the disclosing party to enable disclosing party to seek a protective order or otherwise prevent the disclosure. Further, the receiving party shall disclose only the minimum amount of the disclosing party’s Confidential Information that it is legally required to furnish and, where appropriate, will exercise its best efforts to obtain written assurances that confidential treatment will be accorded to such Confidential Information.
- Equitable Enforcement. In the case of a breach of the confidentiality provisions of this section, the parties hereby agree that their respective remedies at law are inadequate, and consent to equitable enforcement of their obligations under said sections, by a court of appropriate equity jurisdiction hereunder.
If you are an agency or organization of the U.S. Government, you acknowledge and agree that the Software licensed under this Agreement qualifies as a “commercial item” as that term is defined at Federal Acquisition Regulation (“FAR”) 48 C.F.R. 2.101, that consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. You further agree that the Software is “commercial computer software” developed solely at private expense (and using no U.S. Government funding) as that term is defined in Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.227-7014(a)(1); and any associated documentation is “commercial computer software documentation” developed solely at private expense (and using no U.S. Government funding) as that term is used in 48 C.F.R. 2.101. Consistent with 48 C.F.R. 12.212 and 27.405-3 (for civilian agencies), and 48 C.F.R. 227.7202-1 and 227.7202-3 (for military agencies), any use, distribution, reproduction, modification, performance, display or disclosure of the Software by you shall be governed solely by the terms of this Agreement, and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. This Agreement is incorporated by reference and takes precedence over any and all inconsistent terms in any agreements to provide the Software to the U.S. Government, either directly or through a prime or subcontractor. Your use of the Software constitutes acceptance by you of the rights and restrictions in the Agreement.
- Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- Notices. All notices, requests, consents, approvals, or authorizations in connection with this Agreement must be given in writing, and will be deemed given as of (i) the day they are delivered on paper by a nationally or internationally recognized express delivery service, (ii) the day they are delivered by fax transmission or e-mail, if the parties regularly communicate with one another by such means and the sending party receives reasonable assurances that the communication has been received by the other party, or (iii) three (3) days after they are deposited in the sender’s national mail system, postage prepaid, certified or registered, return receipt requested. Any notice given in connection with this Agreement shall be delivered to the addresses set forth in the preamble to this Agreement or to any other address as such party may designate in writing. Either party may change the address above by giving notice to the other party pursuant to this Section.
- Force Majeure. Each party shall be excused from performing any of its obligations hereunder, in whole or in part, as a result of delays caused by the other party or a third party or by an act of God, war, riot, civil commotion, explosion, fire, government action, court order, epidemic or other circumstance beyond its reasonable control If any of the above-enumerated circumstances prevent, hinder or delay performance of either party’s obligations hereunder for more than thirty (30) calendar days following written notice of the circumstance, the party not prevented from performing shall have the right to terminate this Agreement without liability or penalty as of the date specified by such party in a written notice of termination to the other party.
- Taxes. The Fees do not include any applicable federal, state or local taxes and any such taxes or governmental charges with respect to the Software, including sales or use taxes (but exclusive of income or corporate franchise taxes) (“Taxes”). All such Taxes shall be paid by Customer.
- Binding Nature. Subject to all other provisions herein contained, this Agreement shall be binding on the parties and their successors and permitted assigns.
- Assignment. Customer shall not assign or otherwise transfer this Agreement, or any part hereof, nor delegate any of its duties hereunder, whether by operation of law or otherwise, to any third party or affiliate without the prior written consent of the FactualVR.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable any other part of this Agreement, but the Agreement shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable.
- Waiver. No delay or omission by either party hereto to exercise any right occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
- Governing Law; Exclusive Jurisdiction. This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or any SOW, shall be governed by, construed and enforced in accordance with the law of the State of New Jersey (excluding any conflict of laws provisions of the State of New Jersey that would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding relating to this Agreement shall be brought in the state courts of New Jersey. Each of the parties consents to the exclusive personal jurisdiction and venue of the state courts located in New Jersey.
- No Construction Against Drafter. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
- Entire Agreement; Modification. This Agreement sets forth the entire, final and exclusive agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties. This Agreement may be modified only pursuant to a writing executed by authorized representatives of the parties. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any oral modifications to this Agreement; and (b) any other amendments that are based on course of dealing, waiver, reliance, estoppel or other similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section.
- No Third Party Beneficiaries. Nothing in this Agreement shall create any rights in any third party beneficiaries, and FactualVR has no obligation to any third party by virtue of this Agreement.
- Headings. The paragraph headings of this Agreement are for convenience and shall be given no legal significance.
- Survival. The following sections shall survive any termination of this Agreement: 1 (Definitions), 7.4 (Effect of Termination), 8 (Proprietary Rights), 10 (Limits of Liability), 11 (Confidentiality) and 13 (General).
Statement Of Work
This Statement of Work (the “SOW”) forms a part of that certain Master Software License and Services Agreement (“Agreement”), which date shall coincide with the effective date of this SOW (the “Effective Date”), by and between FactualVR and Customer. Any capitalized term used but not defined herein shall have the meaning ascribed to it in the Agreement. The “Services” for the purpose of this SOW are, collectively, the Consulting Services identified in Section 1 below.
- Description of Consulting Services. TBD
- Fees and Compensation.
- Payment Terms.
This SOW shall be coterminous with the Agreement, and shall incorporate all term and termination provisions of the Agreement.
The undersigned, having caused their duly authorized representatives to execute and deliver this SOW to the Agreement as of the date(s) set forth below their respective signatures, intend to be bound by the terms and conditions of it and the Agreement.
IN WITNESS WHEREOF, authorized representatives of the parties have executed this SOW as of the Effective Date.