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EULA

END USER LICENSE AGREEMENT
 

This End User License Agreement (this “EULA”) is made and entered into between Blue Voice Inc. (“Provider”) and the individual who accepts this EULA (“User”). Provider has designed and developed software that uses artificial intelligence to provide a reference application based on various professional resources (the “Software”). User’s employer (“Subscriber”) has entered into an agreement with Provider (the “Subscription Agreement”) to provide the Software for use by User in connection with User’s employment with Subscriber, and this EULA governs User’s use of the Software as permitted under the Subscription Agreement. In the event of any conflict between this EULA and the Subscription Agreement, the Subscription Agreement will prevail.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SOFTWARE, USER AGREES THAT THEY HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO USER’S USE OF THE SOFTWARE, USER AGREES TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING PROVIDER’S PRIVACY POLICY (TOGETHER, THIS “AGREEMENT”). IF USER DOES NOT AGREE TO THIS AGREEMENT, THEN USER DOES NOT HAVE OUR PERMISSION TO USE THE SOFTWARE. USER’S USE OF THE SOFTWARE, AND PROVIDER’S PROVISION OF THE SOFTWARE TO USER, CONSTITUTES AN AGREEMENT BY PROVIDER AND BY USER TO BE BOUND BY THIS AGREEMENT.
 

USER ACKNOWLEDGEMENT: USER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT (1) THE SOFTWARE IS FOR REFERENCE ONLY AND SHOULD NOT BE TREATED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, AND (2) USER’S PROFESSIONAL DECISION-MAKING WILL BE BASED ON CONTEXT AND USER’S PROFESSIONAL DISCRETION, JUDGEMENT, AND TRAINING.
 

1. USE OF THE SOFTWARE

1.1 Use of the Software. Subject to the terms and conditions of this Agreement, Provider grants to User a limited, non-exclusive, non-transferable, personal right and license in the Commonwealth of Massachusetts and during the Term (defined below) of this Agreement to: (a) access and use the Software solely in connection in the scope User’s employment with Subscriber, and (b) to download and install instances of the Software, solely for the access and use rights granted in (a), on up to one (1) desktop, one (1) mobile device, and one (1) mobile data terminal owned by Subscriber and under User’s control.

1.2 Access Credentials. User will only access the Software via the access method provided by Subscriber (“Access Credentials”). User will keep Access Credentials confidential and will not share with any third party, including other employees of Subscriber, User’s Access Credentials or any password provided or set to facilitate User’s access to the Software.

1.3 Support. Provider will use commercially reasonable efforts to (a) make the Software available during the Term, and (b) to respond to reasonable support requests during normal business hours submitted through the Software functionality or via email to admin@bluevoice.com.

1.4 Use of the Documentation. Subject to the terms and conditions of this Agreement, Provider grants to User a limited, worldwide, non-exclusive, non-transferable personal license, without right of sublicense, during the Term of this Agreement to use, solely in connection with use of the Software in accordance with this Agreement, Provider-provided user documentation, in all forms, relating to the Software (e.g., user manuals, on-line help files) (the “Documentation”).

1.5 Use Restrictions and Prohibited Conduct. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED IN THIS AGREEMENT OR AS MAY BE EXPRESSLY PERMITTED BY APPLICABLE LAW, USER WILL NOT, AND WILL NOT PERMIT OR AUTHORIZE ANY THIRD PARTY TO:

  1. (a)  sell, rent, lease, or otherwise permit any third party to use the Software or Documentation;

  2. (b)  use the Software to provide services or information to any third party;

  3. (c)  use the Software for any benchmarking activity or in connection with the development of any competitive product;

  4. (d)  circumvent or disable any security or other technological features or measures of the Software;

  5. (e)  use the Software, Documentation, and any other data or information obtained from User’s use of the Software in violation with any applicable laws or regulations;

  6. (f)  refrain from any unethical conduct or any other conduct that tends to damage the reputation of Provider or the Software;

  7. (g)  violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;

  8. (h)  access, search, or otherwise use any portion of the Software through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the Software or search agents provided by Provider;

  9. (i)  interfere with security-related features of the Software, including by: (i) disabling or circumventing features that prevent or limit use, printing, or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Software except to the extent that the activity is expressly permitted by applicable law;

  10. (j)  interfere with the operation of the Software or any other user’s enjoyment of the Software, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; or (ii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Software;

  11. (k)  perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Software account without permission;

  12. (l)  sell or otherwise transfer the access or rights granted under this Agreement; or

  13. (m)  attempt to do any of the acts described in this Section 1.5 or assist or permit any person in engaging in any of the acts described in this Section 1.5.

1.6 Protection against Unauthorized Use. User will use reasonable efforts to prevent any unauthorized use of the Software and Documentation and immediately notify Provider in writing of any unauthorized use that comes to User’s attention. If there is unauthorized use by anyone who obtained access to the Software directly or indirectly through User, then User will take all steps reasonably necessary to terminate the unauthorized use. User will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized use of the Software or Documentation.

1.7 Reservation of Rights. Provider grants to User a limited right to use the Software and Documentation under this Agreement. User will not have any rights to the Software or Documentation except as expressly granted in this Agreement. Provider reserves to itself all rights to the Software and Documentation not expressly granted to User in accordance with this Agreement.

1.8 Feedback. If User provides any feedback to Provider concerning the functionality and performance of the Software (including identifying potential errors and improvements), then User hereby assigns to Provider all right, title, and interest in and to the feedback, and Provider is free to use the feedback without payment or restriction.

2. USER MATERIALS AND DATA

2.1 License Grant. User may input requests, queries, data, materials, and other information in connection with its use of the Software or may otherwise provide materials to Provider for use in connection with the Software (collectively, “User Materials”). User hereby grants to Provider a non-exclusive, worldwide, royalty-free license to use, reproduce, display, distribute, and modify the User Materials including to: (a) provide, maintain, develop, and improve the Software or Provider’s service, including to train Provider’s algorithms; (b) comply with applicable law; or (c) enforce Provider’s terms and policies. User acknowledges and agrees that any improvements to the Software resulting from the use of the User Materials will not result in any new ownership rights in the Software (or any future versions thereof) for User.

2.2 Responsibility for User Materials. User is responsible for any and all User Materials, including ensuring that it does not violate any applicable law, any third-party rights, or this Agreement. User represents and warrants that: (a) User owns, controls, or has all rights, licenses, and permissions in the User Materials as

necessary for the use contemplated herein; (b) use of the User Materials as contemplated herein does not and will not infringe or violate the rights of any third party, including any intellectual property rights; and (c) the User Materials do not and will not contain any harmful, malicious, or illegal content or code.

2.3 Usage Data and Statistics. User hereby grants to Provider a non-exclusive, worldwide, royalty-free license to collect, copy, analyze, modify, create derivative works of, and otherwise use deidentified and aggregated usage data and statistics generated by User’s use of the Software, for Provider’s internal business purposes.

3. TERM AND TERMINATION

3.1 Term. This Agreement is effective beginning when User accepts this Agreement or first downloads, installs, accesses, or uses the Software, and ending immediately upon the earlier of (a) termination of this Agreement as set forth herein, and (b) expiration or termination of Subscriber’s subscription in accordance with the Subscription Agreement (the “Term”).

3.2 Termination. If User violates any provision of this Agreement, then Provider may suspend or terminate User’s access the Software and this Agreement at Provider’s sole discretion, with or without notice, and without any liability to User arising from such suspension or termination.

3.3 Post-Termination Obligations. If this Agreement is terminated for any reason, then: (a) User’s license rights will terminate and User must immediately cease all use of the Software; (b) User will no longer be authorized to access the Software; (c) User will certify in a signed writing submitted to Provider (through Subscriber) that all use of the Software and Documentation by User has been discontinued; and (d) Sections 1.8 (Feedback), 1.7 (Reservation of Rights), 3.3 (Post-Termination Obligations), 5 (Indemnification), 4.2 (Disclaimer), 6 (Limitations of Liability), and 7 (General) will survive. You are solely responsible for retaining copies of any User Materials.

4. WARRANTIES AND DISCLAIMER

4.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement except with respect to Subscriber as set forth in this Agreement.

4.2 DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 4, PROVIDER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SOFTWARE. PROVIDER DOES NOT WARRANT THAT THE SOFTWARE ARE ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. PROVIDER DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SOFTWARE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SOFTWARE WILL ALWAYS BE AVAILABLE. PROVIDER EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USER’S USE OF THE SOFTWARE.

5. INDEMNIFICATION

5.1 By Provider. Provider will indemnify, defend, and hold harmless User from and against any and all loss, liability, damage, claim, cost, charge, demand, fine, penalty, or expense (collectively, “Losses”) attributable to third-party claims arising directly and solely out of Provider’s gross negligence or willful misconduct in providing the Software pursuant to this Agreement.

5.2 By User. User will indemnify, defend, and hold harmless Provider, its officers, directors, employees, and agents from and against any and all Losses attributable to third-party claims arising out of User’s (a) acts or omissions, including use of the Software other than as expressly authorized under this Agreement by User, or (b) gross negligence, willful misconduct, or violation of any applicable law, rule, or regulation.

Nothing in the Subscription Agreement will limit User’s obligations under this Agreement, and particularly under this Section 5.2.

6. LIMITATIONS OF LIABILITY

6.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

6.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED TOTAL AMOUNTS PAID BY SUBSCRIBER TO PROVIDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

6.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED AND RIGHTS GRANTED BY PROVIDER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 6 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

7. GENERAL

7.1 Relationship. Provider will be and act as an independent contractor (and not as the agent or representative of User) in the performance of this Agreement.

7.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.

7.3 Subcontractors. Provider may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Provider remains responsible for all of its obligations under this Agreement.

7.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 7.4. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.

7.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

7.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Massachusetts, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Suffolk, Massachusetts in connection with any action arising out of or in connection with this Agreement.

7.7 Privacy Policy. Please read the Blue Voice Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information, if any. The Blue Voice Privacy Policy is incorporated by this reference into, and made a part of, this Agreement.

7.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

7.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, then the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Software under this Agreement is found to be illegal, unenforceable, or invalid, then User’s right to use the Software will immediately terminate.

7.10 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.

7.11 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding User’s use of the Software. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Software that Provider may provide. No employee, agent, or other representative of Provider has any authority to bind Provider with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Provider will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by User in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Provider specifically agrees to such provision in writing and signed by an authorized agent of Provider.

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