End User License Agreement for nVision Global

This End-User License Agreement (“EULA”) is a legal agreement between (a) “you” (either an individual or Client as defined below) and (b) nVision Global Technology Services, Inc., also acting on behalf of its subsidiaries and affiliates (collectively, “nVision Global”). This EULA governs your use of any “Software” (as defined below) installed or made available by nVision Global. If you, or the entity through which you were provided a log-in ID and password to the Software or which subscribed to the Software (the “Client”) by a written Logistics Services Agreement, addendum, order form or otherwise (collectively, the “LSA”), then this EULA is supplemental to the LSA, and use of the Software is subject the terms of the LSA in addition to this EULA.

By accessing or using the Software, or by clicking “I agree” if presented with that option, you acknowledge that you have read and are bound by the LSA (if you require a copy of the LSA please contact Client’s contract administrator) and this EULA. If you are entering into this EULA on behalf of Client, you represent that you have the authority to bind Client to this EULA, in which case the terms “you” and “your” shall refer to both you as an individual user and to Client. Individual users may also be referred to as “Permitted Users” as defined below.
If you do not agree with this EULA, do not access or use the Software, and do not click “I agree.”

Definitions:

“Documentation” means the operating, training and reference manuals relating to the use and operation of the Software, and any enhancements, updates or versions related thereto, whether in printed form, electronic form, posted on nVision Global’s website, available on-line or in any other format otherwise made available by nVision Global.

“Permitted User” means the named or specified (by password or other user identification) individuals authorized by nVision Global using the Software, regardless of whether the individual is actively using the Software at any given time. The maximum number of Permitted Users that may use or access the Software is specified in Appendix A to the LSA. Client is responsible for ensuring that all usage of the Software by Permitted Users is in accordance with the terms and conditions of this EULA. In no event shall any individual that is employed by, or acting on behalf or under the direction or control of, a direct competitor of nVision Global be authorized as a Permitted User.

“Software” means the object code of nVision Global’s proprietary software for logistics, distribution, transportation and/or supply chain processes and management, specifically including any associated software modules that are authorized by nVision Global for use by Client.

The Software includes all web tools, business intelligence tools and other technology accessed through or used by the Software.

“Term” means the period starting on the date you first access or use the Software, and ending on the earlier of (i) the date this EULA is terminated as set forth herein, or (ii) the date the LSA expires or is terminated.

Software License:

The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  The Software is licensed, not sold.

nVision Global and its suppliers and licensors continue to own all rights, including all copyright, trade secret, patent, trademark, service mark and other proprietary rights, in the Software, data and other content provided hereunder and any other copies of such items that you are authorized by this EULA to make.

Subject to the terms of this EULA, nVision Global grants the following persons or entities a limited personal, non-exclusive, non-transferable license to use the Software and the Documentation during the Term of this EULA, solely for Client’s internal business purpose of processing Client’s data: (i) to you, solely in your capacity as a Permitted User, and (ii) to Client, solely to enable authorized use by Permitted Users.  All persons, individuals, and entities who are not Permitted Users, or who cause Client to exceed the number of Permitted Users specified in the LSA, are “Unauthorized Users.”

Limitations and Restrictions:
Notwithstanding any other provision of this EULA, in no event shall you (i) permit any person, individual or entity to use the Software by any Unauthorized User, (ii) derive or attempt to derive the source code or structure of all or any portion of the Software by reverse engineering, disassembly, decompilation or any other means; (iii) give, sell, rent, lease, timeshare, sublicense, publish, assign, market, transfer or distribute any portion of the Software or Documentation to any third party; (iv) publish or otherwise disclose the results of any benchmark tests run on the Software; (v) modify, translate, patch, alter or otherwise change the Software or Documentation, or any part thereof, or create any derivative works of the Software; or (vi) use the Software as a service bureau. Without limiting the generality of the foregoing, you acknowledge and agree that in the event that you breach any of the foregoing limitations and restrictions or any other term or condition of this EULA, nVision Global shall have the right to immediately: (a) suspend access to the Software; and (b) invoice Client (jointly and severally, with any other person or entity responsible for any unauthorized access to the Software) triple nVision Global’s then-current standard monthly per-user license fees for each incident of unauthorized access or use of the Software by each Unauthorized User, which Client acknowledges and agrees shall represent a reasonable minimum estimation of the damages that would results from any such misuse of the privileges granted herein.  Client shall be responsible for the immediate payment of all such fees.  The foregoing remedies shall be in addition to, and not in lieu of, any and all other remedies that nVision Global may have at law or in equity upon the discovery of additional damages caused by the misuse of the privileges granted herein.  Client hereby acknowledges and agrees that nVision Global shall have no responsibility or obligation to reactivate Client access to the Software after the occurrence of any such violation.

User Responsibilities: Client is solely responsible for all data and information (the “Data”) that you or any Permitted User import or enters into the Software.  You represent and warrant that the Data does not, and will not at any time, (i) infringe upon or violate any intellectual property, privacy, publicity or other right of a third party, (ii) violate any applicable law, rule or regulation, or (iii) contain any virus or harmful component.  You agree that nVision Global will not be responsible for, or have any liability in connection with, any use or misuse of Data or with respect to electronic transactions.  You hereby grant to nVision Global and its licensors and suppliers in connection with the Software a non-exclusive, non-transferable license to use, upload, display, copy and store the Data.  You will not cause, make or permit any infringement or other violation of any third party intellectual property, privacy, publicity or other rights.

Client will be solely responsible for, and will use commercially reasonable efforts to provide and maintain in good working order, its own Internet access, telecommunications equipment, software and other materials necessary for accessing the Software.

Client will indemnify, defend and hold harmless nVision Global and its suppliers and licensors, and any of their respective employees, officers, directors, representatives, agents, attorneys and insurers, from any liability, damages or costs (including, without limitation, attorneys’ fees) arising out of, or relating to, breach of this EULA or any suit or action brought by either or both of Permitted Users and Unauthorized Users.

Confidentiality:  You acknowledge and agree that the Software, Documentation, and all materials, systems and information accessible through the Software, contain and/or represent the confidential information of nVision Global (“Confidential Information”).  Confidential Information includes, without limitation, the source code and the business rules associated with the Software, all past, current and planned specifications, data, know-how, methods of doing business, formulae, compositions, processes, designs, inventions, ideas, database technologies, systems, structures and architectures, documentation, and any other past, present or anticipated information associated with the Software or nVision Global’s business.  In addition, the term “Trade Secrets” as used herein means any information of nVision Global or its licensors or suppliers, without regard to form, that constitutes a trade secret under applicable law.  You acknowledge that the source code of the Software constitute a Trade Secret.

Non-disclosure:  During the Term of this EULA and thereafter as described below, you shall keep secret, treat as confidential and not disclose to any third party each item of the Confidential Information and Trade Secrets.  Client shall not permit the disclosure of any Confidential Information to any person or entity whatsoever for a period of three years from the date this EULA expires or terminates.  Client shall not permit the disclosure of the Trade Secrets to any person or entity whatsoever for as long as such Trade Secret meets the definition of a Trade Secret under applicable law.  You shall not use, or permit the use of, any of the Confidential Information or Trade Secrets for any purpose other than in connection with the proper performance of its obligations under this EULA.  The originals and all copies of any Confidential Information or Trade Secrets, regardless of the medium in which they are stored, shall be promptly returned to nVision Global in good order upon completion or termination of this EULA.  You acknowledge that any use or disclosure of the Confidential Information or Trade Secrets in any manner inconsistent with the provisions of this EULA may cause nVision Global and/or its suppliers and licensors irreparable harm, and you agree that nVision Global and/or its suppliers and licensors shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure, in addition to appropriate remedies.

Warranty Disclaimer:

DISCLAIMER OF WARRANTIES AND REMEDIES.  nVision Global HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, PERFORMANCE, EFFORT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.  nVision Global MAKES NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE.  nVision Global DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY SOFTWARE OR OTHER SYSTEMS OR APPLICATIONS OR TOOLS OF ANY KIND SELECTED OR PROVIDED BY CLIENT, AND nVision Global DOES NOT WARRANT AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE.

nVision Global DISCLAIMS, AND CLIENT HEREBY WAIVES, ON BEHALF OF ITSELF AND THE PERMITTED USERS, THE BENEFIT OF ANY REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET FORTH IN THIS EULA.  THE ENTIRE RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH CLIENT.

No Liability for Consequential Damages: UNDER NO CIRCUMSTANCES WILL nVision Global, OR ANY OF nVision Global’s OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES HAVE ANY LIABILITY TO ANY PERSON OR ENTITY, INCLUDING YOU, FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS’ FEES), OR LOSS OF PROFITS, REVENUE OR GOODWILL, IN ANY WAY, REGARDING THIS EULA OR RESULTING FROM THE USE OR ACCESS OR INABILITY TO USE OR ACCESS, OR PERFORMANCE OR NONPERFORMANCE OF, THE SOFTWARE,  DOCUMENTATION, OR ANY COMPONENTS THEREOF, INCLUDING FAILURE OF ESSENTIAL PURPOSE, EVEN IF nVision Global HAS  BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.  nVision Global’s MAXIMUM LIABILITY FOR ANY CLAIM BY CLIENT OR ANYONE CLAIMING THROUGH OR ON BEHALF OF CLIENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), SHALL NOT IN ANY EVENT EXCEED THE ACTUAL AMOUNT, IF ANY, PAID BY CLIENT FOR USE OF THE SOFTWARE PURSUANT TO THE LSA.

NOT FAULT TOLERANT: THE SOFTWARE MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF LICENSED SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

Termination:  This EULA shall automatically and immediately terminate upon the expiration or termination of the LSA for any reason.  In addition, nVision Global may terminate this EULA upon written notice to Client if Client or any Permitted User breaches any of the terms and conditions of this EULA or the LSA.  Termination of this EULA shall not limit nVision Global from pursuing any other remedies available to it, nor shall it relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client. Immediately following termination, Client and all Permitted Users shall cease using the Software, and Client shall delete and remove all instances of the Software installed on its systems, and shall return or destroy all copies of Confidential Information in its possession.

EXPORT AND RESTRICTED RIGHTS:  The Software is provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as amended and as applicable, or any successor regulations thereto.  For the purposes thereof, “Manufacturer” is nVision Global Technology Solutions, Inc., 1900 Brannan Road, McDonough, Georgia 30253.

You shall not export or transmit the Software or any part thereof, directly or indirectly, to any restricted countries or in any manner that would violate the Export Administration Act of 1979, as amended, or any United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to United States law.

Audit:  nVision Global, and its authorized representatives or agents, shall have the right, upon notice to Client, to enter onto the premises of Client or any Permitted User, or conduct a survey via telephone, or electronic mail, to perform an audit to ensure that  use and access to the Software is in compliance with this EULA and the LSA.  You shall cooperate with any such audit and shall keep, and shall allow nVision Global to access, accurate records of each computer on which the Software, or portions of the Software are installed, the locations of such computers, and the number and identity of Permitted Users.  nVision Global shall have the right to disclose the results of any audits to its licensors and suppliers.

Miscellaneous: This EULA constitutes the entire agreement between you and nVision Global concerning the subject matter hereof, and supersedes all prior understandings, communications, or agreements, written or oral, that are not expressly incorporated into this EULA. In case of any conflict between this EULA and the LSA, the provisions of the LSA will apply. This EULA will be governed by the laws of the state of Georgia without reference to its conflicts of laws principles.  This EULA may not be modified except in writing duly signed by an authorized representative of nVision Global.