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DVS Analytics, Inc. (“DVS”) has authorized resellers (each a “Reseller”) to resell licenses for DVS workforce optimization software and related DVS services as part of Reseller’s telecommunications offerings. Reseller’s customers that have purchased DVS licenses or services from Reseller (each an “End Customer”) are authorized to use the DVS software and services on the terms, conditions and restrictions stated in this Reseller End Customer License and Services Agreement (this “End Customer Agreement”).
DVS licenses to End Customer the executable version of the general commercial release of the DVS’ workforce optimization software and related software and user documentation (the “DVS Software”) described in the End Customer’s Order with Reseller (the “Order”) on the terms, conditions, and restrictions stated in the Order and this End Customer Agreement. The license is non-exclusive. The license term is either perpetual or is a subscription license having an initial term as stated in the Order. If the Order is silent as to the license term, the DVS Software is licensed on a subscription basis having an initial term of one month. If all or any part of the DVS Software is licensed on a hosted “software as a service” or “SaaS” basis, the software is licensed for online use remotely over the Internet on a system hosted by DVS. The license is worldwide subject to applicable export laws. The license is conditioned on End Customer’s compliance with use limits stated in the Order such as number of phone lines, number of users, number of computers on which it may be installed, or other metric. End Customer may sublicense the Software to its contractors for their use in support of Customer’s operations subject to all of the terms, conditions, and restrictions of this license. The license is suspended or terminated on suspension or termination of this Agreement as provided in Section 7 (Suspension, Termination) below and is automatically terminated by End Customer’s failure to comply with the license conditions and restrictions stated in this Section. The license may not be transferred or assigned except as part of an assignment of the End Customer Agreement permitted by Section 8 (Assignment). End Customer may use the DVS Software only for its internal business purposes; it may not resell the Software license or use the Software to provide services to others. End Customer may not: (i) use the DVS Software other than as part of its use of the Reseller offering, (ii) reverse engineer, decompile, or disassemble the DVS Software except as permitted by applicable law notwithstanding this limitation and then on at least thirty (30) days advance written notice to DVS; (iii) modify or create derivative works of the DVS Software; (iv) use the DVS Software for the purpose of developing a competing technology; (v) publish any benchmarking or other performance analysis of the DVS Software without DVS’s advance written consent; (vi) make copies of the DVS Software except as reasonably incident to End Customer’s permitted use of the DVS Software; (vii) remove any copyright or other proprietary rights notices that appear on or within the DVS Software; or (viii) use the DVS Software in any situation where failure or fault of the DVS Software could lead to death or serious bodily injury of any person or damage to tangible property or environmental damage. The Software is DVS’ confidential and proprietary information and may not be disclosed to any person except as reasonably necessary for End Customer’s licensed use of the Software and subject to all of the terms, conditions and restrictions of this license.
The Software may include code that is licensed under open source software licenses. The “read me” or “help” or similar files included with the Software describe any open source software that is included and related license terms, attributions, copyright notices, and other required information. To the extent there is a conflict between the terms of the license for any open source software and this End Customer Agreement, the open source license shall control as to the software covered by that license.
If the Order includes DVS’ implementation, software assurance, support, training, customization, or other services (the “Services”) DVS shall provide those Services on the terms, conditions and restrictions stated in the Order and this End Customer Agreement. DVS has no obligation to provide updates, enhancements, bug fixes, error corrections, technical assistance, or other maintenance, support, or services in connection with the DVS Software except for those Services expressly described in the Order. Updates and enhancements to the DVS Software provided as part of Services are “DVS Software” subject to the license terms and conditions stated in this Agreement.
Any hardware that may be in included on the Order for DVS Technology is provided by DVS as a reseller for the hardware component manufacturer. As between DVS and End Customer the hardware is provided AS IS. The Hardware manufacturer is solely responsible for the functioning and security of the hardware. If Customer has purchased DVS hardware support, DVS will provide limited troubleshooting support for the hardware and will assist End Customer in obtaining from the manufacturer a replacement for any defective or failed hardware. Otherwise DVS makes no commitment whatsoever with regard to Hardware.
(a) Software Warranty. For a period of one year from End Customer’s purchase of the Software license DVS warrants that the Software will conform in all material respects with the Software documentation and will be free of material defects. To the extent the DVS Software is licensed on a hosted “SaaS” basis, DVS warrants that it will use reasonable security measures to protect the hosting environment. DVS shall remedy any breach of the Software warranty that is described in Customer’s breach notice given within the warranty period, or if DVS is unable to remedy the breach shall permit Customer to terminate the license for a prorated refund of the license fee based on the then then-remaining license term, or for a perpetual license based on a three- year amortization period. DVS offers Software Assurance services to address errors or defects arising after the warranty period. (b) Services Warranty. DVS warrants that its Services will be provided in a good and professional manner by individuals having appropriate training and skill to provide the Services. DVS shall remedy any breach of the Services warranty that is described in End Customer’s breach by re-performing the Services. DVS has no obligation to address issues arising from use of the Software other than as described in the DVS documentation. The warranty remedies stated in this Section are End Customer’s sole and exclusive remedies for breach of the warranties stated in this Section. Except for these warranties DVS makes no warranties or representations regarding the Software or Services and hereby expressly disclaims any implied warranties, such as any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
Limitations on Damages. None of DVS or its affiliates, or its or their officers, directors, owners, members, managers, employees, personnel, licensors, suppliers, distributors, resellers, or subcontractors (the “DVS Persons”) shall be liable to End Customer for any indirect, special, incidental, or consequential loss or damage of any kind, or for any lost profits, revenue, business opportunities, use of data, customers, contracts, goodwill or reputation, or for any punitive or exemplary damages arising from the subject matter of this End Customer Agreement; and in no event shall the liability of any of the DVS Persons in connection with the subject matter of this End Customer Agreement exceed, in the aggregate, the total amount paid or payable to DVS by Reseller for the license and services from which the claim arose for the twelve (12) months immediately preceding the event(s) that gave rise to the claim. The limitations stated in this Section apply to any liability arising from any cause of action, including tort, commercial code, strict liability, or otherwise, even if a limited remedy fails of its essential purpose. Nothing in this Section precludes a party from seeking specific enforcement, injunctive relief, or other non-monetary equitable remedy that is available by law. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
DVS may suspend or terminate this End Customer Agreement for End Customer’s breach of this End Customer Agreement or the Order, and for DVS Software provided as an online services or “SaaS” use of the DVS Software in violation of acceptable use norms, provided that DVS provides End Customer with ten (10) days advance notice of a suspension or termination and End Customer has failed to cure the breach within the ten (10) day period. Customer may not use the Software or Services during a suspension. On expiration of a subscription license, or earlier termination of a subscription or perpetual license for breach, Customer must stop using the Software and related documentation and uninstall and destroy all copies of the Software and related documentation.
End Customer may not assign this End Customer Agreement without DVS’s prior written consent except as part of a transfer of all or substantially all of End Customer’s assets.
DVS is not responsible for a failure of the DVS Technology if the failure is due to an event beyond DVS’s reasonable control, such as significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, or terrorism.
These Terms are governed by the laws of the State of Texas and the United States of America, as applicable, excluding any law that require the application of the law of a different jurisdiction. Each of DVS and End Customer agree that it shall bring any lawsuit or other legal action related to this End Customer Agreement in the State or Federal courts sitting in Bexar County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court. To the extent permitted by applicable law, each of End Customer and DVS waive the right to a trial by jury in respect of any litigation arising out of the subject matter of this End Customer Agreement.
DVS Software is licensed and not sold; except for the rights expressly granted in this End Customer Agreement DVS reserves all right, title, and interest in and to the DVS Software including any rights in any customizations to the DVS Software or other technology that may be prepared as part of the Services. No rights in intellectual property may arise by implication or estoppel. If there is a conflict between the terms of this End Customer Agreement and the End Customer’s agreement with Reseller, this End Customer Agreement will control as to the DVS Software and other technology. Nouns stated in the singular may imply the plural as indicated by the context, and pronouns that are gender specific should be read to refer to either gender. This End Customer Agreement may be amended only by a written agreement signed by both parties that expressly refers to this End Customer Agreement. The pre-printed terms of End Customer’s purchase order or other business form are void and of no effect whatsoever. If any part of this End Customer Agreement is found unenforceable, the rest of this End Customer Agreement will continue in effect and the unenforceable part shall be reformed to the extent necessary to make it enforceable consistent with the business interests underlying the Trder. Each party may enforce its respective rights under this End Customer Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. Nothing in this End Customer Agreement creates an obligation of exclusivity or non-competition. Each party is free to purchase and sell services of the type described in this End Customer Agreement to any person, including competitors of the other party. Except as expressly stated otherwise, there are no third-party beneficiaries to this End Customer Agreement.