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VGo App End User License Agreement

The End User License Agreement is made available prior to a installing new VGo App software.  Here is the agreement in its entirety.

VGo Communications, Inc.

End-User License

 

THIS IS AN IMPORTANT LEGAL DOCUMENT BETWEEN YOU (“YOU”) AND VGo COMMUNICATIONS, INC. (“VGo”).  IF YOU DO NOT AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE PROVIDED OR ACCESSED HEREWITH OR ANY UPDATES THERETO (THE “VGo SOFTWARE”). 

THIS LICENSE OF THE VGo SOFTWARE IS VALID ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS SET FORTH IN A SEPARATE CONTRACT BETWEEN YOU AND VGo OR ITS APPLICABLE RESELLER.  YOUR ACCEPTANCE WILL BE BY INSTALLING, DOWNLOADING, ACCESSING OR USING THE VGo SOFTWARE OR BY CLICKING “I ACCEPT” WHERE APPLICABLE. YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “CUSTOMER”) TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN (A) YOU MAY NOT DOWNLOAD, INSTALL, ACCESS OR USE THE VGo SOFTWARE, AND (B) YOU MAY RETURN THE VGo SOFTWARE, ALL ASSOCIATED PRODUCTS ORIGINALLY SUPPLIED BY VGo AND ALL DOCUMENTATION PROVIDED THEREWITH (COLLECTIVELY, “VGo PRODUCTS”) TO VGo OR THE AUTHORIZED VGo RESELLER FROM WHOM YOU PURCHASED THE APPLICABLE VGo PRODUCTS FOR A FULL REFUND, OR, IF THE SOFTWARE AND DOCUMENTATION ARE SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND.  ONLY THE ORIGINAL END USER PURCHASER MAY RETURN THE VGo SOFTWARE AND VGo PRODUCTS UNDER THIS PARAGRAPH.  IN THE EVENT THERE IS A SEPARATE SIGNED OR CLICK THROUGH AGREEMENT BETWEEN YOU AND VGo, THE TERMS OF THOSE OTHER AGREEMENTS WILL SUPERSEDE THIS AGREEMENT IN THE EVENT OF A CONFLICT.

1.            Grant of License.  Subject to the terms and conditions of this Agreement, VGo hereby grants to Customer a nonexclusive, non-sublicensable, nontransferable (except as set forth in Section 7(b) below) license to use the VGo Software, solely for Customer’s internal business purposes as further described in Section 2(b) below.  Customer’s license to use the VGo Software shall be limited to the number of users or other metrics set forth in the applicable Purchase Order between Customer and VGo or an authorized VGo reseller, and for which Customer has paid or agreed to pay to VGo or its authorized reseller all applicable fees.

2.            Restrictions on Use and Disclosure.

(a)          Software is Licensed not Sold.  Customer agrees and acknowledges that all VGo Software is licensed and not sold, and that all use of “purchase” or “sell” in connection with VGo Software shall be deemed to mean “license.”  Nothing in this Agreement shall be deemed to provide to Customer any right, title or interest in any VGo Products or VGo Software, other than the express license rights set forth in Section 1 hereof. 

(b)          Permitted Use.  Customer shall use the VGo Software solely as embedded in, for execution on, or in connection with VGo Products owned or leased by Customer and used for Customer’s internal business purposes.  For all VGo Software, downloaded or otherwise obtained by Customer, Customer shall not copy or duplicate the VGo Software, or any portion thereof, for any other purpose other than for its own internal business purposes.  For all VGo Software accessed remotely via hosted services, no download or copying or duplication of the VGo Software is permitted outside of normal functionality of the VGo software when in operation.  No other uses of the VGo Software or services are authorized by this Agreement and any unauthorized use of the VGo Software or services shall be a violation of the terms of this Agreement.  No right or license is granted under this Agreement for the use of the VGo Software, directly or indirectly, for any other purpose or for the benefit of any other person or entity.

(c)          Ownership; Proprietary Notices.  Title to, and ownership of, and all proprietary rights in, the VGo Software, Documentation and services and all intellectual property rights in the VGo Software, VGo Products, Documentation and all intellectual property rights therein, and each copy thereof, shall remain at all times with VGo or its third party licensors.  Customer may not sell, transfer, lend or otherwise make available, or disclose to third parties, the VGo Software, or remove or alter any copyright or other proprietary notice contained therein.  Customer shall include on each copy of the VGo Software all copyright or other proprietary notices of VGo or its licensors contained on such VGo Software.  Customer shall not remove any proprietary or other notices provided by VGo on any VGo Software, VGo Product or Documentation.

(d)          No Modification or Reverse Engineering.  Customer may not modify or alter the VGo Software, VGo Products or Documentation, create derivative works of the VGo Software, VGo Products or Documentation, reverse engineer the VGo Software or VGo Products, translate the VGo Software or reduce the VGo Software by any other means to a human‑perceivable form.  Customer agrees not to use or permit the VGo Software or VGo Products to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of VGo.  Customer agrees not to disclose, provide, or otherwise make available trade secrets contained within the VGo Software, VGo Products or Documentation in any form to any third party without the prior written consent of VGo.  Customer shall implement reasonable security measures to protect such trade secrets. To the extent required by law, and at Customer’s written request, VGo or an authorized VGo reseller shall provide Customer with the interface information needed to achieve interoperability between the VGo Software and another independently created program, on payment of the applicable fee, if any.  Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which VGo or its authorized resellers makes such information available.

(e)          Audit.  Customer hereby grants to VGo, itself or using an independent third party auditor, the right to audit Customer’s books, records and systems during normal business hours upon seven (7) days prior written notice.  In the event such audit identifies material non-compliance with this Agreement or any separate written agreement between VGo and Customer, Customer shall pay VGo’s costs of such audit.

3.            No Hazardous Uses.  VGo Products are not authorized for use in critical safety or other applications where any failure may reasonably be anticipated to result in bodily injury, loss of life, or catastrophic damage to property.  If Customer uses or sells the VGo Products for use in any such applications, Customer acknowledges that such sale or use is at Customer’s sole risk.  Customer will indemnify, defend and hold VGo and its authorized resellers and suppliers harmless from and against any and all liabilities and costs arising out of or in connection with such sale or use.

4.            Term and Termination.  This Agreement and the license granted herein shall remain effective until terminated as specified in the related Purchase Order, separate written agreement, or under this section.  Customer may terminate this Agreement and the license at any time by destroying all copies of the VGo Software and any login credentials permitting remote access to any VGo Software.  Customer’s rights under this Agreement will terminate immediately without notice from VGo or any authorized VGo reseller if Customer fails to comply with any provision of this Agreement.  Upon termination, Customer shall destroy all copies of the VGo Software in its possession or control.  All limitations on liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.  Any other clauses which by their terms are required for the enforcement of this Agreement shall survive termination.

5.            Warranty Disclaimer.  CUSTOMER MAY OBTAIN WARRANTIES IN A SEPARATE AGREEMENT WITH VGo OR IN ITS ARRANGEMENTS WITH VGo’S AUTHORIZED RESELLER FROM WHICH CUSTOMER ACQUIRED THE VGo SOFTWARE AND VGo PRODUCTS.  EXCEPT FOR ANY WARRANTIES SPECIFICALLY AGREED UPON IN A SEPARATE AGREEMENT BY VGo, THE VGo SOFTWARE AND VGo PRODUCTS ARE PROVIDED “AS IS” AND VGo HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OPERATION OR FITNESS FOR OR SATISFACTION IN REGARDS TO A PARTICULAR PURPOSE OF THE LICENSED SOFTWARE, DOCUMENTATION OR ANY UPDATES.

6.  Limitations on Liability.

(a)          Disclaimer.  IN NO EVENT SHALL VGo, ITS LICENSORS OR ITS AUTHORIZED RESELLERS BE LIABLE UNDER ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COVER, RELIANCE, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST REVENUE, OR LOSS OF DATA OR PROFITS, WHETHER OR NOT VGo, ITS LICENSORS OR ITS AUTHORIZED RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b)          Limitation.  IN NO EVENT SHALL VGo’S, ITS LICENSORS’ AND ITS AUTHORIZED RESELLERS’ AGGREGATE LIABILITY WITH RESPECT TO THE VGo PRODUCTS EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR SUCH VGo PRODUCTS IN THE THEN-PRECEDING TWELVE MONTH PERIOD.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

7.            Other Provisions.

(a)          Governing Law. This Agreement, and all disputes relating hereto, shall be governed by and construed in accordance with the laws of the State of New Hampshire, excluding its conflicts of laws principles, the United Nations Convention on Contracts for the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods, and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.  All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of New Hampshire and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.

(b)          Assignment. Customer shall not assign this Agreement or any rights or obligations hereunder, without the prior written consent of VGo, except that Customer may assign this Agreement, in its entirety (and not in part), to any acquirer of the VGo Products with which the VGo Software is used, so long as such acquirer agrees in writing to be bound to the terms and conditions of this Agreement and any other agreements between VGo and Customer, to the same extent such agreements apply to Customer.  Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(c)          Export Regulations. Customer understands that VGo is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Customer warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.

(d)          Restricted Party.  Customer represents that it is not a Restricted Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; (2) on the U.S. Department of Commerce Denied Person’s List, Entity List, or Unverified List; U.S. Department of the Treasury list of Specially Designated Nationals and Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-U.S. military organization.  Customer shall not sell, resell, loan, disclose, or otherwise transfer any VGo Software, VGo Product or Documentation to any Restricted Person without prior, express written authorization from VGo and the appropriate U.S. Government agency.  If Customer becomes a Restricted Person during the term of this Agreement, this Agreement shall automatically terminate and Customer shall immediately cease all use of the VGo Software.

(e)          United States Government Restricted Rights.  The VGo Software is provided with Restricted Rights and qualify as “commercial items” consisting of “commercial computer software” and “computer software documentation” as such terms are defined and used at FAR (48 C.F.R.) 2.101 and FAR 12.212.  Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.

(f)           Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect

(g)          Entire Agreement. This Agreement, as it may be amended from time to time, sets forth the entire agreement between you and VGo with respect to its subject matter, and it supersedes all prior communications, understandings and agreements, as well as the terms and conditions set forth in or on any purchase order, acknowledgement form, check, or any other document or instrument you may issue to VGo or transmit in connection with your use of the Licensed Software, excluding (A) any separate agreement signed by VGo, (B) any separate click through agreement required by VGo in order for Customer to access or use the VGo Software, (C) the VGo Communications website terms of use and (D) the VGo Communications Privacy Policy..

(h)          Miscellaneous.  If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.  This Agreement has been written in the English language, and the parties agree that the English version will govern.  The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

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