VSS monitoring - Support & Downloads

VSS MONITORING LICENSE AND SERVICES AGREEMENT

This Agreement ("Agreement") is between the purchaser of this license and its agents and representatives (collectively, "Licensee") and VSS monitoring, Inc., a California corporation, and its affiliates, with corporate headquarters located at 751 Laurel St. #103, San Carlos, CA 94070 USA (collectively "VSS monitoring").
This Agreement governs VSS monitoring's grant of a license to Licensee to use this Licensed Product(s), which is defined as, (i) this computer program and all error corrections, Updates and Upgrades hereto (as defined below), in machine readable form, furnished to Licensee under this Agreement (the "Software"); (ii) all written and electronic materials generally made available by VSS monitoring for the Software (the "Documentation"); and (iii) the code block(s) software for use with the Software.

BY INSTALLING OR USING THE SOFTWARE, LICENSEE ACKNOWLEDGES THAT IT HAS READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEM. LICENSEE UNDERSTANDS THAT, IF IT PURCHASED A COPY OF THE LICENSED PRODUCT FROM AN AUTHORIZED RESELLER OF VSS monitoring, THAT RESELLER IS NOT VSS monitoring'S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON VSS monitoring'S BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.

IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY PROMPTLY (BUT IN NO EVENT LATER THAN 30 DAYS FROM THE FIRST ATTEMPTED INSTALLATION) RETURN THIS LICENSED PRODUCT TO THE PLACE IT OBTAINED THE LICENSED PRODUCT FOR A FULL REFUND. IF LICENSEE SHOULD HAVE ANY DIFFICULTY IN OBTAINING SUCH REFUND, PLEASE CONTACT VSS monitoring AT 650-697 8770.

1. DEFINITIONS.
1.1 "Designated Equipment" means (a) for licenses that are restricted to Use on only one computer ("Node Locked License"), the individual computer on which the Software is first installed, (b) for licenses that permit the Use of the Software on more than one computer ("Floating License"), the computer server on which the Software licensing mechanism is first installed and the number of individual computers for which a license fee has been paid, (c) for software intended for specific VSS monitoring hardware devices, any such devices the software has been installed on or in, or downloaded to.
1.2. "Designated Location" means the street address of the Designated Equipment.
1.3. "Proprietary Information" means: (a) VSS monitoring's marketing, product, business and other strategies and plans; (b) any other information of VSS monitoring disclosed in tangible form and marked or identified as proprietary or confidential; and (c) the source code, object code, internal design and implementation techniques of the Software. Excluded from Proprietary Information is any information that is: (d) rightfully in the public domain; (e) rightfully in Licensee's possession prior to receipt from VSS monitoring; (f) rightfully learned by Licensee from a third party not in violation of any obligation of confidentiality or other right; or (g) developed independently by Licensee without benefit of the Proprietary Information.
1.4. "Territory" means the country of the Designated Location.
1.5. "Update(s)" means a new release of a particular Software program which provides error corrections or enhanced functionality and for which VSS monitoring does not charge a license or update fee to licensees of that Software program.
1.6. "Upgrade(s)" means a Software program with greater or different capability than the Software program to be upgraded and for which VSS monitoring charges a license fee to licensees of the Software program to be upgraded.
1.7. "Use" means copying all or any portion of the Software into a computer or any other hardware device, transmitting it to a computer or other device for processing of its instructions or displaying any portion of the Software in connection with the processing of such machine instructions.

2. PAYMENT AND INSTALLATION.
2.1. Payment. Licensee shall pay VSS monitoring in full for the Licensed Product within thirty (30) days of the invoice date, provided, however, that payment may become immediately due if Licensee's account becomes delinquent. Licensee shall pay for each installment delivery of Licensed Product.
2.2. Installation. Licensee shall be responsible for installation of the Licensed Product.

3. LICENSE GRANT.
3.1. Evaluation License. If this Software has been provided for evaluation by Licensee or Licensee has not paid to VSS monitoring all applicable charges for this Software, then VSS monitoring grants to Licensee only a non-exclusive, non- transferable, limited-term evaluation license solely for internal use of the Software, and solely for the purpose of testing and evaluating the Software to determine if Licensee will purchase a license to the Software from VSS monitoring (an "Evaluation License"). Licensee shall not use the Software in the productive course of business or for any purpose other than testing and evaluating the Software as described above. This Evaluation License shall be effective as of the date Licensee first installs the Software and shall remain in effect only for thirty (30) days, unless this Agreement is terminated prior thereto by either party. During the term of this Evaluation License, VSS monitoring shall provide Licensee with maintenance and support services for the Software as follows, (i) telephone support from VSS monitoring customer support personnel during VSS monitoring's normal support business hours; and (ii) software updates for the Software as deemed appropriate by VSS monitoring. Promptly upon the expiration of this Evaluation License, Licensee shall either: (a) purchase a standard license for the Software pursuant to the terms of this Agreement; or (b) return the Software and all related materials to VSS monitoring. Failure to return the Software and all such materials to VSS monitoring within thirty-five (35) days of first installation shall be deemed to be an election by Licensee to purchase a standard license for the Software pursuant to Section 3.2 hereof, and payment for such license shall become due and payable thirty (30) days thereafter (65 days after first installation).
3.2. Standard License. If this Software has been provided to Licensee for use in the productive course of business, VSS monitoring hereby grants, and Licensee accepts, a nontransferable, nonsublicensable, perpetual, nonexclusive, limited license to Use the Licensed Product in machine readable form only, and only on the Designated Equipment at the Designated Location, and only for Licensee's internal, normal business purposes. The Licensed Product shall not be used in a computer service business or in a rental or commercial timesharing arrangement.
3.3. Intellectual Property Rights. All intellectual property rights in and to the Licensed Product shall remain the property of VSS monitoring (and/or its suppliers, if applicable), exclusively. Licensee shall have no rights, title or interest in or to the Licensed Product except as expressly set forth in this Agreement.
3.4. Use on Designated Equipment. Use of the Software is restricted to the Designated Equipment at the Designated Location.
4. PROTECTION OF PROPRIETARY INFORMATION.
4.1. Ownership. The Proprietary Information of VSS monitoring shall remain confidential and proprietary to VSS monitoring.
4.2. Source Code. Licensee shall not attempt to reverse engineer, decompile or disassemble the Software or any portion thereof, or otherwise derive its source code.
4.3. Copy. Licensee may make one copy of the Software and Documentation solely for backup and archival use, retaining on such copy VSS monitoring's and/or its suppliers' copyright, trademark, confidentiality and other notices.
4.4. Destruction of Software. Licensee shall erase the Software from all Designated Equipment prior to retiring such equipment from active use and in the event of termination of this Agreement.
4.5. Inclusion With Other Software. Licensee may Use the Software within or in conjunction with any other software, but must comply with Section 4.4 above upon termination of this Agreement or change of the Designated Equipment, and any use shall always remain subject to this Agreement.
4.6. Confidentiality. Licensee shall not disclose, provide or otherwise make available the Proprietary Information of VSS monitoring to any person, other than authorized employees of Licensee who have signed agreements with Licensee providing for the protection of the Proprietary Information, without VSS monitoring's prior written consent. Licensee shall also protect the Proprietary Information through instructions to its employees, access limitations, and the like, no less securely than if it were Licensee's own intellectual property. Licensee shall not use the Proprietary Information except to the extent permitted hereunder. No media containing the Software, nor any Documentation, shall be transferred, reproduced or used in any way, other than as expressly permitted by this Agreement.

5. LIMITED WARRANTY AND DISCLAIMER.

THE LICENSED PRODUCT AND ALL OTHER ITEMS AND SERVICES PROVIDED IN CONNECTION WITH ANY EVALUATION LICENSE HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. With respect to any license hereunder other than Evaluation Licenses, VSS monitoring warrants that the Software will conform substantially to its Documentation for thirty (30) days from delivery and that the media containing the Software will be free of defects in material and workmanship under normal use for thirty (30) days from delivery. Licensee must obtain a return authorization number from VSS monitoring before returning the Software, media or a Peripheral to VSS monitoring. If VSS monitoring confirms a material non-conformity in the Software reported by Licensee in the unaltered Software, VSS monitoring will use commercially reasonable efforts to remedy the nonconformance. VSS monitoring does not warrant that the operation of the Licensed Product will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance. Corrections and replacements will be warranted for the remainder of the original warranty period. If any Software fails to comply materially with any limited warranty set forth in this Section 5 and VSS monitoring does not remedy such failure pursuant to this Section 5, VSS monitoring's sole obligation and liability, and Licensees exclusive remedy, for such failure shall be limited: (i) for non-conforming Software, to the refund of the license fee paid for such Software, upon the return of such Software to VSS monitoring, in which event this Agreement shall terminate; and (ii) for defective media to replace the defective media that are returned to VSS monitoring within the warranty period. Some jurisdictions do not allow the exclusion or limitation of relief, incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee. VSS monitoring will have no obligation for non-conformities in the Software or defects in media that are caused by accident, abuse or misuse of the Software, media or Peripheral. In the event that VSS monitoring separately grants Licensee in writing the right to modify the Licensed Product, Licensee shall display VSS monitoring's and/or its suppliers' copyright, trademark, confidentiality and other notices on any portion of the Licensed Product so Used. VSS monitoring MAKES NO CONDITIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5. VSS monitoring DISCLAIMS ALL OTHER CONDITIONS AND WARRANTIES, EXPRESSED AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT WITH RESPECT TO THE LICENSED PRODUCT AND ALL OTHER PRODUCTS, SUPPORT SERVICES, OTHER SERVICES, MATERIALS, DOCUMENTATION AND OTHER ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT. Some States do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Licensee if prohibited by law. This warranty gives Licensee specific legal rights, and Licensee may also have other rights which vary from State to State and which cannot be disclaimed by contract.

6. INFRINGEMENT.
6.1. Disclaimer. VSS monitoring shall have no liability for any claim of infringement of a patent, copyright or other intellectual property right or trade secret misappropriation, based on the use of the Licensed Product: (a) on a computer or hardware for which it was not designed; (b) with any other product not supplied by VSS monitoring; (c) in any manner or purpose for which the Licensed Product was not designed; (d) if the infringement or misappropriation would have been avoided by Licensee's use of the most current version of the Licensed Product; (e) if it has been modified by anyone other than VSS monitoring; or (f) infringing on intellectual property rights or trade secrets owned by Licensee or any of its affiliated companies.

7. LIMITATION OF LIABILITY.
7.1. Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 ("INFRINGEMENT') OF THIS AGREEMENT, VSS monitoring'S (AND ITS SUPPLIERS') ENTIRE LIABILITY, AND LICENSEES EXCLUSIVE REMEDY, FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATED TO ANY ITEM OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LICENSE FEE PAID TO VSS monitoring BY LICENSEE FOR THE LICENSED PRODUCT. IN NO EVENT SHALL VSS monitoring (NOR ANY OF ITS SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS), ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF VSS monitoring HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of special, incidental, consequential, indirect or exemplary damages, or the limitation of liability to specified amounts, so the above limitation or exclusion may not apply to Licensee.
7.2. Limitations Period. Neither party may bring any action under this Agreement for any cause whatsoever more than two (2) years after the occurrence giving rise to such cause of action; provided however, that this Section 7.2 shall not apply to any action brought by VSS monitoring for violations of Section 3 or Section 4 above and actions brought by VSS monitoring to protect its intellectual property rights.

8. DEFAULT AND TERMINATION.
8.1. Default. VSS monitoring may, by written notice to Licensee, terminate this Agreement, including the licenses granted hereunder, if any of the following events occur: (a) the failure of Licensee to pay VSS monitoring in full any fee or charge due to VSS monitoring if payment is not rendered within ten (10) days after Licensee receives written notice that payment is overdue; (b) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after Licensee receives written notice of such breach ; (c) any material breach of Section 3 (License Grant) or Section 4 (Protection of Proprietary Information) effective immediately upon written notice from VSS monitoring; or (d) the insolvency of Licensee.
8.2. Termination. Licensee's right to use the Licensed Product shall cease upon termination without further action. Within seven (7) days of termination, Licensee shall return to VSS monitoring the Licensed Product, including the original and all copies of all, Documentation and Software, together with a certification by a duly authorized representative of Licensee that all copies of the Software not returned have been destroyed.
8.3. No Waiver. Termination shall be in addition to, and not a waiver of, any remedy available to VSS monitoring at law, equity or under this Agreement.
8.4. Survival. Notwithstanding the foregoing, the provisions of Sections 2.1 ("Payment"), 4 ("Protection of Proprietary Information"), 6 ("Limited Warranty") and 7 ("Limitation of Liability"), shall survive termination.

9. GENERAL.
9.1. Other Agreements. This Agreement supersedes all prior oral and written agreements and understandings between the parties related to the subject matter hereof, and constitutes the complete and exclusive statement of such agreement. All orders for Licensed Product issued by Licensee while this Agreement is in effect shall be governed by the terms and conditions of this Agreement exclusively, and the terms and conditions contained in any purchase order issued by Licensee shall be of no force or effect, even if the order is accepted by VSS monitoring.
9.2. Headings. Headings in this Agreement are for convenience only, and shall be disregarded when interpreting the terms hereof.
9.3. Export Controls. In the event Licensee exports the Licensed Product from the Territory, Licensee assumes the responsibility for compliance with all applicable export and re-export regulations, as the case may be.

9.4. Assignment. Neither this Agreement nor any of Licensee's rights or obligations under this Agreement shall be assigned or transferred by Licensee without VSS monitoring's prior written consent and any attempted assignment or transfer without such consent shall be void. Licensee agrees that this Agreement binds Licensee and each of its employees, agents and persons associated with it, including Licensee's affiliated and subsidiary firms, corporations and other organizations. VSS monitoring may assign this Agreement and its rights and obligations hereunder without Licensee's consent.
9.5. Force Majeure. Neither party shall not be liable for any failure or delay in performing services or any other obligation under this Agreement (other than payment obligations), nor for any damages suffered by reason of such failure or delay, which is, indirectly or directly, caused by strike, riot, natural catastrophe or other act of God, or any other cause beyond either party's reasonable control.
9.6. No Waiver. If either party fails to perform any of its obligations hereunder and the other party fails to enforce the provisions relating thereto, such party's failure to enforce this Agreement shall not prevent its later enforcement.
9.7. Severability. If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the intent of the parties on the date hereof or (b) deemed eliminated where such modification is not practicable. The remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.
9.8. Notices. All notices and correspondence under this Agreement shall be in writing and shall be delivered by personal service, confirmed facsimile, express courier, or certified mail, return receipt requested. If to VSS monitoring, Licensee shall deliver notice to the last address to which Licensee sent payment for Licensed Product, Software or support services (or to any subsequent address communicated to Licensee in writing). If to Licensee, notice shall be delivered to the last address to which VSS monitoring sent an invoice (or to any subsequent address communicated to VSS monitoring in writing). All notices shall be deemed effective upon receipt if delivered personally or sent by express courier or confirmed facsimile, and seven (7) days after mailing if sent by certified mail.
9.9. Governing Law. This Agreement, and all transactions hereunder, shall be governed by, and any arbitration hereunder shall apply, the laws of the State of California, excluding (a) its rules regarding conflict of laws; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
9.10. Attorney Fees and Costs. If any legal action is brought in connection with this Agreement, the prevailing party shall be entitled to receive its reasonable attorney fees and costs in addition to any other relief it may receive.
9.11. Modifications. No modifications of this Agreement shall be binding upon either party unless made in writing and signed by an authorized representative of VSS monitoring and Licensee.
9.12. Government Use. If Licensee is a U.S. Government entity, the Software and the Documentation are "commercial computer software" or "commercial computer software documentation." Absent a written agreement to the contrary, the Government's rights with respect to such Software or Documentation are limited by the terms of this Agreement, pursuant to FAR ' 12.212(a) and/or DFARS ' 227.7202-1(a), as applicable.
9.13. Dispute Resolution. All disputes arising out of or relating to this Agreement shall be finally resolved by arbitration conducted in the English language in Santa Clara County, California, U.S.A. under the arbitration rules of the American Arbitration Association if Licensee is located in North America or under the commercial arbitration rules of the United Nations Commission on International Trade Law if the Licensee is located outside of North America. Three arbitrators shall be appointed by the President of the American Arbitration Association. Both parties shall bear equally the cost of the arbitration (exclusive of legal fees and costs, all of which shall be allocated in accordance with Section 9.10 above). All decisions of the arbitrator(s) shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party's rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.