End-User License Agreement

BY USING OR INSTALLING ANY PART OF THE SOFTWARE PROVIDED HEREWITH, YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS, INSTALL OR USE ANY PART OF THE SOFTWARE. IF YOU HAVE A SEPARATE AGREEMENT WITH US COVERING YOUR
ACCESS AND USE OF THE SOFTWARE, THE TERMS, AND CONDITIONS OF THAT SEPARATE AGREEMENT SHALL GOVERN THE SAME.

IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SOFTWARE AND MUST IMMEDIATELY RETURN OR DELETE THE SOFTWARE, AS APPLICABLE. IF YOU LOAD OR OTHERWISE ACCESS OR USE THE SOFTWARE, YOU ARE DEEMED TO HAVE ACCEPTED THESE TERMS AND SHALL BE BOUND BY THE SAME.

 

THIS END USER LICENSE AGREEMENT (this “Agreement”) is entered into by and between Visual BI Solutions Inc., a Texas corporation, with a business address of 5920 Windhaven Pkwy, Plano TX 75093 (“VBI”, the “Company,” “Us” or “We) and the person, organization or entity (the “Licensee,” “You” or “Your“) which has purchased, as more specifically identified in Your invoice, or has otherwise accessed, downloaded, reviewed or used Company’s Licensed Software, either in Evaluation Version or Commercial Version, subject hereto.

 

  1. LICENSED SOFTWARE.
    1. Definition. As used herein, the term “Software” or “Licensed Software” means the ValQ visuals for Microsoft Power BI computer software programming and code (the “Licensed Software”) authored, shared, published or made available by Company to Licensee in its Evaluation Version or Commercial Version; any physical medium of delivery; any documentation, user manuals, and related materials provided by Us with the Licensed Software (collectively, the “Licensed Documentation”); any and all updates, enhancements or supplemental materials provided with regard thereto and any and all other data and information provided by Company other than information or data provided by Licensee.
    2. Licenses.
      1. Trial, Evaluation & Beta Licenses (“Evaluation Version”): These types are licenses shall mean a limited version of the Licensed Software that is meant for evaluation and testing purposes and are not intended for commercial use. Unless You have purchased a paid License of the Licensed Software, the terms and conditions pertaining to the Evaluation Version shall apply. This includes the subscription plan tiers and the specific restrictions mentioned in your invoice as well as those specified in https://valq.com/pricing. With respect to the Evaluation Version, You acknowledge and agree that:
        • YOUR USE OF THE EVALUATION VERSION IS LIMITED TO YOUR INTERNAL EVALUATION PURPOSES ONLY, AND MAY NOT INCLUDE USE OF THE SAME IN A PRODUCTION ENVIRONMENT. AS SUCH, YOU MAY NOT DEMONSTRATE, TEST, EXAMINE, EVALUATE OR OTHERWISE UTILIZE THE EVALUATION VERSION IN A LIVE OPERATING ENVIRONMENT OR WITH DATA THAT HAS NOT BEEN SUFFICIENTLY BACKED UP;
        • The Evaluation Version does not qualify for maintenance or support, and any use of Evaluation Version is at Your risk.
        • THE EVALUATION VERSION OF THE SOFTWARE MAY HAVE AN EXPIRY PERIOD. UPON COMPLETION OF EXPIRY PERIOD, YOU AGREE NOT TO MAKE ATTEMPTED OR ACTUAL ACCESS TO OR ATTEMPTED OR ACTUAL FURTHER USE OF THE EVALUATION VERSION AND YOU WILL DELETE OR DESTROY, AS APPLICABLE ALL COPIES OF THE SAME THAT YOU POSSESS OR CONTROL;
        • YOUR ONLY OPTION TO CONTINUE TO USE THE SOFTWARE POST EXPIRATION OF SUCH EVALUATION PERIOD IS TO ACQUIRE A PAID, VALIDLY LICENSED COPY OF THE SOFTWARE
        • Company reserves the right to unilaterally amend access to Evaluation Version, its features and terms & conditions governing the same
      2. Upon Your purchase of any of the paid licenses of the Software (“Commercial Version” – Any paid version of licensed software), You shall be provided with a Commercial Version to be entitled to maintenance and support as set forth in section 7 below. Unless expressly stated to the contrary herein, all references to the Licensed Software shall refer to both the Evaluation Version and/or the Commercial Version, as applicable. Either Version may be delivered to you via electronic means and/or physical medium.
      3. Third-Party Compatibility. You acknowledge and agree that Licensed Software may not operate, in whole or in part, in the event You utilize Licensed Software in connection with certain third-party software components other than those outlined in http://valq.com/agreement/supported-software. We make no representations or warranties to cover that situation and You agree that You utilize any such components at Your own risk.
  2. THIRD-PARTY COMPONENTS.
    1. Third-Party License. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT USE OF LICENSED SOFTWARE REQUIRES A FULLY FUNCTIONING COPY OF MICROSOFT POWER BI LICENSES AS OUTLINED IN http://valq.com/agreement/supported-software AND ACCEPTANCE OF MICROSOFT’S LICENSE AGREEMENT FOR SAME (THE “THIRD PARTY LICENSE“). LICENSEE IS SOLELY RESPONSIBLE FOR MAINTAINING AN ENVIRONMENT THAT SUPPORTS USE OF LICENSED SOFTWARE. LICENSEE HEREBY AGREES TO INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM ANY AND ALL VIOLATIONS OF THE THIRD PARTY LICENSE, AS AMENDED. LICENSEE AGREES TO USE LICENSED SOFTWARE AT ITS SOLE RISK IN ACCORDANCE WITH THIS AGREEMENT AND THE THIRD PARTY LICENSE.
    2. Open Source Components. LICENSEE HERE ACKNOWLEDGES AND AGREES THAT LICENSED SOFTWARE INCLUDES AND/OR MAKES AVAILABLE OPEN SOURCE COMPONENTS LISTED IN http://valq.com/agreement/opensourceattribution
      LICENSEE ACKNOWLEDGES AND AGREES THAT IT IS ALSO SUBJECT TO THE LICENSE TERMS OF EACH SUCH COMPONENT.
  3. LICENSE FEES.
    The Evaluation Version of Licensed Software is available to You free of any Fees. The License granted herein to the Commercial Version of Licensed Software is subject to payment of a recurring subscription license fee to the Company (the “License Fees”) and any applicable maintenance and support fees (the “Support Fees”). The License Fees and the Support Fees are referred to collectively as the “Fees”.
  4. LICENSE GRANT. Subject to the terms of this Agreement and payment of all applicable Fees, the Company hereby grants to Licensee (and Licensee alone) a time-bound, worldwide, nonexclusive, non-transferable, non-sublicensable, fee-bearing limited license to use the object code version of the Licensed Software as a single, undivided unit, and to use the Licensed Documentation exclusively in connection with the Licensed Software, solely for Licensee’s internal business purposes (the “Software License”). EXCEPT FOR LICENSEE’S AFFILIATES AND LICENSEE’S CONTRACTORS (BOTH DEFINED BELOW), THE SOFTWARE LICENSE DOES NOT INCLUDE ANY RIGHT FOR ANY THIRD PARTIES TO RECEIVE, ACCESS OR USE THE LICENSED SOFTWARE IN WHOLE OR IN PART. IN THE EVENT LICENSEE WITH ONE OR MORE AFFILIATES IS LOOKING TO DEPLOY LICENSED SOFTWARE IN ADDITIONAL PRODUCTION ENVIRONMENTS INCLUDING ADDITIONAL DOMAINS, REPORT SERVERS OR SERVICE FOR THE BENEFIT OF ITS AFFILIATES, LICENSEE WILL BE REQUIRED TO PURCHASE A SEPARATE SOFTWARE LICENSE FOR EACH SUCH ADDITIONAL ENVIRONMENT. IF YOU ARE A SERVICE PROVIDER OR HOSTING PROVIDER, YOU ARE NOT AUTHORIZED TO USE THE LICENSED SOFTWARE IN A MANNER (INCLUDING, WITHOUT LIMITATION, AS A SERVICE BUREAU OR DASHBOARD) THAT PROVIDES ACCESS TO AND/OR ENABLES USE OR CONSUMPTION OF LICENSED SOFTWARE BY END USER THIRD PARTIES. THE LICENSED SOFTWARE FOR THE EVALUATION VERSION DOES NOT INCLUDE ANY RIGHT FOR LICENSEE OR ANY THIRD PARTY TO ACCESS OR USE THE COMMERCIAL VERSION OF THE LICENSED SOFTWARE IN WHOLE OR IN PART. WHEREVER THE SOFTWARE LICENSE, INVOICE OR SUBSCRIPTION PLAN LIMITS YOUR USAGE TO A SPECIFIC NUMBER OF USERS, SUCH LIMIT SHALL INCLUDE INDIVIDUALS WITH VIEW-ONLY RIGHTS WHO ACCESS LICENSED SOFTWARE DIRECTLY OR INDIRECTLY TO EXCLUSIVELY VIEW OR CONSUME DATA OR REPORTS AS APPLICABLE. As used herein, the term: “Affiliate” shall mean only any person, organization or entity controlling, controlled by or under common control with Licensee, including but not limited to subsidiaries, correspondents and parent entity utilizing the Licensed Software solely within Licensee’s environment and solely for the benefit of Licensee. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity; and “Contractors” shall mean only Licensee’s third-party contractors, such as an IT contractor, utilizing the Licensed Software solely within Licensee’s environment and solely for Licensee’s benefit.
  5. ADDITIONAL LICENSE RESTRICTIONS.The Software License is subject to the following additional limitations, restrictions, and terms of use: Licensee shall not, directly or indirectly, copy, translate, reverse engineer, decompile, disassemble, decode, sell, rent, convey, lend, distribute, sublicense, timeshare, service bureau, display, host, outsource, disclose or otherwise commercially exploit or make available to any third party the Licensed Software, or any component thereof, or modify, create any derivative works of, enhance, or otherwise change or supplement the Licensed Software or the Licensed Documentation, in any way. Licensee shall not use the Licensed Software to provide services to third parties (e.g., consulting, systems integration, business process outsourcing, hosting, or third-party training). Customer shall not remove any proprietary copyright, trademark, or service mark legend from any Licensed Software or Licensed Documentation components. Licensee agrees further not to use the Licensed Software in any way that is competitive with Company, and shall not publish or otherwise disclose information relating to the performance of Licensed Software or to any third party unless and only to the extent required by law or regulation or as agreed by Company in writing.
  6. OWNERSHIP OF LICENSED SOFTWARE. The Licensed Software and Licensed Documentation are being licensed, and not sold, to You. All right, title, and interest in and to the Licensed Software and Licensed Documentation, and any related intellectual property or other proprietary rights therein or thereto, are and shall always remain the sole and exclusive property of the Company and its licensors. Licensee’s rights in or to the Licensed Software and Licensed Documentation are limited to those rights expressly set forth in this Agreement. If Licensee is an agency or instrumentality of the United States Government, the Licensed Software and Licensed Documentation are commercial computer software and commercial computer software documentation within the meaning of applicable Federal Acquisition Regulations (as may be amended or supplemented from time to time), and Licensee’s use of the Licensed Software and Licensed Documentation is governed exclusively by this Agreement.
  7. LIMITED SUPPORT; EXCLUSIVE REMEDY.
    1. Evaluation Version. You understand and acknowledge that You are not entitled to any maintenance or support for the Evaluation Version of the Licensed Software.
    2. Commercial Version. The company may provide You maintenance and support (“Support”) for the Commercial Version of the Licensed Software as outlined here if applicable: (https://valq.com/pricing/).

    You acknowledge and agree that your receipt of Support is contingent upon You at all times maintaining a valid and paid Software License to the Full Version; and payment by You of all applicable Fees without any dues.

  8. CONFIDENTIALITY. Licensee acknowledges that the Licensed Software and the Licensed Documentation contains valuable trade secrets and confidential information of the Company, including but not limited to (i) any third-party software licensed with or as part of the Licensed Software, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (ii) the concepts, techniques, ideas, and know-how embodied and expressed in the Licensed Software; and (iii) the architecture and functionality of the Licensed Software; the appearance, content, and flow of the screens; the organization, design, and content of the Licensed Software; and the method and pattern of user interaction with the Licensed Software. Licensee agrees not to share, disclose or transfer, and not to permit any third party to share, disclose, or transfer any trade secrets or confidential information of or relating to Licensed Software or the Company.
  9. TERMINATION OF LICENSE; SURVIVAL. This Agreement is effective upon Your acceptance of the terms and conditions set forth herein, indicated by Your clicking of “ACCEPT” below and shall continue in full force until terminated. You may terminate this Agreement and Your use of Licensed Software at any time, at your discretion, by deleting the Licensed Software and Licensed Documentation from any and all computers and media. Without prejudice to the foregoing, the Company may terminate this Agreement and Software License for (a) Licensee’s nonpayment of applicable Fees for the first subscription term after five (5) days prior written notice of such nonpayment, (b) Licensee’s failure to renew the subscription by paying Fees for the upcoming renewal period prior the end of the current subscription period, (c) usage of Licensed Software in a manner that violates or exceeds the subscription plan usage limits and (d) any material, uncured breach of this Agreement by Licensee. Upon any termination of this Agreement, (i) the Software License shall automatically terminate; (ii) Licensee shall delete from all computer systems and media or destroy any and all copies of Software, the Licensed Software, and the Licensed Documentation; and (iii) Licensee shall permanently terminate any and all use of all of the same. Upon any termination of this Agreement, the provisions of Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 shall survive.
  10. AUDIT RIGHTS. Upon Company’s written request, You shall certify in a signed writing that your use of Licensed Software is in full compliance with the terms of this Agreement and shall provide usage details. Company may audit your use of Licensed Software provided such audit is conducted during business hours, and if such inspections or audits disclose that you have installed, accessed or permitted access to the Software in a manner that is not permitted under this Agreement, you will be liable to pay for usage over and beyond what may have been agreed upon, if applicable, from the date of the initial purchase, in addition to applicable remedial charges. In addition, Company may also exercise the option to terminate this Agreement pursuant to Section 9 and You will be liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Company may be entitled to under this Agreement and applicable law
  11. LIMITED WARRANTY/DISCLAIMER OF WARRANTIES.
    1. LICENSOR WARRANTS THAT THE LICENSED SOFTWARE WILL CONFORM TO THE PERFORMANCE STANDARDS AND SPECIFICATIONS SET FORTH IN THE LICENSED DOCUMENTATION IF THE LICENSED SOFTWARE IS PROPERLY INSTALLED AND USED IN AN APPROPRIATE OPERATING ENVIRONMENT. LICENSOR’S SOLE RESPONSIBILITY UNDER THIS WARRANTY SHALL BE LIMITED TO CORRECTING THE PORTION OF THE LICENSED SOFTWARE THAT FAILS TO PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE SAID SPECIFICATIONS OR, AT THE OPTION OF LICENSOR, REFUNDING THE APPLICABLE LICENSE FEES, IN WHICH EVENT LICENSEE SHALL RETURN ALL COPIES OF THE LICENSED SOFTWARE AND RELATED DOCUMENTATION OR DESTROY THAT WHICH IS NOT RETURNED. LICENSOR SHALL HAVE NO LIABILITY UNDER THE FOREGOING WARRANTY IF (i) LICENSEE DECOMPILES, REVERSE ENGINEERS, OR MODIFIES THE LICENSED SOFTWARE WITHOUT LICENSOR’S PRIOR WRITTEN CONSENT, (B) LICENSEE FAILS TO GIVE LICENSOR WRITTEN NOTICE OF THE CLAIMED BREACH OF WARRANTY, OR (C) THE FAILURE TO PERFORM IS CAUSED IN WHOLE OR IN PART BY PERSONS OTHER THAN LICENSOR OR BY PRODUCTS, EQUIPMENT, OR COMPUTER PROGRAMS NOT FURNISHED BY LICENSOR. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY OPEN SOURCE COMPONENTS WITHIN AND/OR MADE AVAILABLE THROUGH THE LICENSED SOFTWARE, AND LICENSOR SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE ARISING OUT OF THE SAME.
    2. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10(A) ABOVE, THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT, INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND ANY WARRANTIES ARISING FROM A COURSE OF USAGE OR TRADE PRACTICE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE MEET LICENSEE’S REQUIREMENTS OR WILL OPERATE IN THE COMBINATION THAT LICENSEE SELECTS FOR USE, OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED BY LICENSOR.
    3. YOU AS LICENSEE ALONE SHALL DETERMINE IF AND TO WHAT EXTENT THE LICENSED SOFTWARE WILL MEET YOUR NEEDS AND YOU ALONE SHALL BEAR THE ENTIRE RISK OF ITS PERFORMANCE OR NON-PERFORMANCE, THE ENVIRONMENT AND/OR PLATFORM WHICH YOU OPERATE WITH THE SAME, AND YOUR NEED FOR THIRD PARTY LICENSES, INCLUDING, WITHOUT LIMITATION, THE THIRD PARTY LICENSE. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY COSTS, LOSSES, LIABILITIES, DAMAGES, EXPENSES OR CLAIMS INCURRED AS THE RESULT OF YOUR USE THEREOF.
  12. LIMITATION OF LIABILITY AND DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY, UNDER THIS AGREEMENT OR THROUGH THE USE OF THE LICENSED SOFTWARE OR LICENSED DOCUMENTATION, FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, LOSS OF BUSINESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN. LICENSOR’S AND LICENSEE’S AGGREGATE LIABILITY IN CONTRACT, TORT, OR OTHERWISE TO THE OTHER OR ANY THIRD PARTY ARISING FROM THIS AGREEMENT OR THE USE OF THE LICENSED SOFTWARE SHALL BE LIMITED TO THE LICENSE FEES ACTUALLY PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT FOR THE CURRENT SUBSCRIPTION PERIOD.
  13. INDEMNIFICATION. You hereby agree to indemnify, hold harmless and defend the Company, and its shareholders, officers, directors, employees, and agents, from and against any and all third party actions, claims, damages, debts, demands, losses, and liabilities, including reasonable attorney’s fees, asserted against the Company and arising out of or relating to Your breach of this Agreement; and/or Your use or misuse of Licensed Software, the Licensed Software and/or the Licensed Documentation; and/or any breach of Licensee’s obligations under Section 13 below.
  14. EXPORT. The Licensed Software and Licensed Documentation may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. The licensee shall strictly comply with all such laws and regulations and has sole responsibility to obtain authorization to export or import the Licensed Software and Licensed Documentation, as may be required. Licensee’s obligations under this section shall survive the expiration or termination of this Agreement.
  15. GENERAL PROVISIONS.
    1. Complete Agreement. This Agreement is the entire agreement relating to the subject matter of this Agreement between You and the Company and supersedes any prior or contemporaneous agreements, understandings, or proposals as to the subject matter of this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both You and the Company.
    2. Notice. Any notice or communication required or permitted in this Agreement shall be in writing and shall be delivered by email or regular mail. Any email directed to the Company may be addressed to support@valq.com. Any email directed to Licensee shall be addressed to the last known email address in Licensor’s records for Licensee.
    3. Governing Laws and Venue. This Agreement and performance under this Agreement shall be governed exclusively by the laws of the State of Texas, without regard to any considerations of conflicts of law. FOR ANY DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF THE STATE AND FEDERAL COURTS IN COLLIN COUNTY, TEXAS. ALL SUCH ACTIONS SHALL BE TRIED BY THE COURT SITTING WITHOUT A JURY AND THE PARTIES IRREVOCABLY WAIVE THEIR RIGHTS TO A TRIAL BY JURY. In connection with all actions or proceedings in which the Company prevails against Licensee, the Company shall be entitled to recovery of its costs and expenses, including reasonable attorneys’ fees.
    4. Severability. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
    5. Assignment. Licensee may not assign, sublicense, or otherwise transfer, without the prior written consent of Licensor, Licensee’s rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, and any purported attempt to do so is void and of no effect.
    6. Waiver. The delay or failure of the Company to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of such right or any further right under this Agreement.
    7. Headings. The headings appearing at the beginning of the several sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.
    8. No Construction against Drafter. If an ambiguity or question of intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by You and the Company and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of the authorship of any of the provisions of this Agreement.
    9. Equitable Remedies. You acknowledge and agree that the Company would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore the Company shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as the Company may otherwise have available under applicable laws.