bVisual, S.A. End User License Agreement

bVisual^™
End User License Agreement
bVisual™
END USER BETA TEST SOFTWARE LICENSE AGREEMENT


IMPORTANT NOTICE TO END USERS:  This End User License Agreement (the “Agreement”) is a legal agreement between the user of the Licensed Software (either an individual person or a single legal entity, who will be referred to in this Agreement as “You”) and bVisual, S.A.  This agreement includes provisions related to secrecy and to the experimental use nature of the Licensed Software.

BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE LICENSED SOFTWARE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE LICENSED SOFTWARE.  IF YOU ACQUIRED THE LICENSED SOFTWARE ON TANGIBLE MEDIA (e.g. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF ANY AMOUNT YOU ORIGINALLY PAID IF YOU (A) DO NOT USE THE LICENSED SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE PURCHASE RECEIPT DATE.

This Agreement is effective on the date on which You manifest Your acceptance of this Agreement by downloading, installing, copying or otherwise using the Licensed Software.
1.	DEFINITIONS.  In this Agreement, “Licensed Software” means the computer programs, in machine-readable, interpreted, compiled or other form, furnished to You, directly or indirectly, by bVisual, and including without limitation, (i) Transmitter and/or Receiver computer programs residing on any medium and all materials or contained in any download supplied by bVisual in connection with the Licensed Software, (ii) related explanatory written materials or files ("Documentation"); and (b) upgrades, modified versions, updates, additions, and copies of the Licensed Software, if any, provided to You by bVisual, either directly or indirectly (collectively, "Updates").  “Experimental Use” means attempting and/or completing installation and/or using the Licensed Software under the provisions of the judicially-created experimental use exception to use in public.  “Secrecy” means the contents and expression of, and Your use of the Licensed Software are secret and do not constitute use in public.  “bVisual” means bVisual, S.A., P.O. Box 2640, Oroville, WA 98844 and/or its successors.
2.	LICENSE.  As long as You comply with the terms of this Agreement, bVisual grants You a personal, non-exclusive, non-transferable license to use the Licensed Software (in object code form only).  The license granted hereunder is perpetual.
3.	SOFTWARE TITLE.  bVisual is not selling You the Licensed Software.  Title to the Licensed Software, including all translations, compilations, derivative works and copies remain with bVisual.
4.	SUPPORT SERVICES.  bVisual may provide You with support services related to the Licensed Software ("Support Services"). Use of Support Services is governed by the policies and programs described in any user manual, in "online" documentation, or in other materials from the support services provider.  Any supplemental software code provided to You as part of the Support Services are considered part of the Licensed Software and subject to the terms and conditions of this Agreement. You acknowledge and agree that bVisual and its contractors, resellers and distributors may use technical information You provide to them as part of the Support Services for its business purposes, including for product support and development.
5.	RESTRICTIONS.
5.1	Unless specifically and expressly permitted by bVisual, You agree not to modify, adapt or translate the Licensed Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Licensed Software except to the extent You may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Licensed Software with another software program, and You have first requested bVisual to provide the information necessary to achieve such operability and bVisual has not made such information available. bVisual has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by bVisual or obtained by You, as permitted hereunder, may only be used by You for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Licensed Software.
5.2	You agree that the sole purpose for using the Beta Test versions of the Licensed Software to is for Experimental Use.  You agree to provide to bVisual feedback regarding compatibility, operability, interoperability, functionality, suitability, performance, and stability of the Licensed Software in your computer and computer systems.  You agree to report to bVisual any errors that may occur during your operation of the Licensed Software.  You agree to surrender or destroy, at bVisual’s option, any copies of the Licensed Software in your possession at the conclusion of the Beta Test period.
6.	INTELLECTUAL PROPERTY AND CONFIDENTIALITY.
6.1	The Licensed Software and any copies that You are authorized by bVisual to make are the intellectual property of and are owned by bVisual, Inc. The Licensed Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You may not copy the Licensed Software, except as set forth in Section 2 (License). Any copies that You are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Licensed Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners' names. Trademarks can only be used to identify printed output produced by the Licensed Software and such use of any trademark does not give You any rights of ownership in that trademark. Except as expressly stated herein, this Agreement does not grant You any intellectual property rights in the Licensed Software and all rights not expressly granted herein are reserved by bVisual.
6.2	The Licensed Software, including without limitation its structure, organization and code, and its accompanying Documentation are bVisual’s confidential information and constitute trade secrets.  You will not directly or indirectly, disclose such information except to those of its employees or consultants who require such disclosure in connection with Your experimental use of the Licensed Software and who are also subject to the same confidentiality obligations.
6.3	You agree to maintain in secrecy Your use of the Licensed Software including but not limited to compatibility, operability, interoperability, functionality, procedures, suitability, performance, stability, features, screen layout, and other aspects of the Licensed Software except for communications with bVisual or others who are also subject to the same confidentiality obligations, and as such, your use of the Licensed Software does not constitute use in public.
7.	LIMITED WARRANTY
7.1	Limited Warranty.  bVisual warrants that it has made reasonable efforts for the Licensed Software to perform substantially in accordance with the accompanying materials and online documentation for a period of ninety (90) days from the date of receipt or until the conclusion of the beta test period, whichever occurs first.  The nature of beta test software is such that unknown or known but minor problems with the Licensed Software with respect operability, suitability, compatibility, and/or stability may exist and/or that workarounds or solutions to known problems may be under development.  Any supplements or updates to the Licensed Software provided to You after the expiration of ninety (90) days limited warranty period are not covered by any warranty or condition, express or implied.  bVisual’s entire liability and Your exclusive remedy will be, at bVisual’s option, (a) return of the price paid (if any) for the Licensed Software, or (b) repair or replacement of the Licensed Software that does not meet this limited warranty and that is returned to bVisual.  This Limited Warranty is void if failure of the Licensed Software has resulted from accident, abuse, misapplication, abnormal use or a virus.  
7.2	DISCLAIMER OF WARRANTIES.  THE LIMITED WARRANTY THAT APPEARS ABOVE IS THE ONLY EXPRESS OR IMPLIED WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING.  EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BVISUAL PROVIDES THE LICENSED SOFTWARE “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE LICENSED SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, NONINFRINGEMENT, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE LICENSED SOFTWARE.
8.	EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BVISUAL WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE LICENSED SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING AS A RESULT OF A CLAIM OF PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF BVISUAL OR, AND EVEN IF BVISUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.	LIMITATION OF LIABILITY AND REMEDIES.  NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF BVISUAL UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY BVISUAL WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE LICENSED SOFTWARE OR U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 6, 7, AND 8 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10.	TERMINATION.  If You breach any provision of this Agreement, then bVisual may terminate any license granted hereunder effective immediately without liability after 10 days written notice to You, and You will promptly return to bVisual all copies of the Licensed Software.
11.	ASSIGNMENT AND TRANSFER.  You may not sublicense or assign this Agreement or any interest or right granted herein without bVisual’s prior written consent, provided that such assignee or transferee abides by the obligations and restrictions set forth in this Agreement.
12.	GOVERNMENT LICENSEE.  The Licensed Software and accompanying documentation were developed at private expense and no part of them is in the public domain.  The Licensed Software is “Restricted Computer Software” and “Commercial Computer Software” and if You are acquiring the Licensed Software for the United States Government, then it is acquiring only “restricted rights” in the Licensed Software and its Documentation, all as defined in the applicable provisions of the Department of Defense Federal Acquisition Regulation Supplement and the Federal Acquisition Regulations.  Such unit will include a “restricted rights legend” on the Licensed Software as may be necessary to insure the limitation of rights acquired by the government.  Notwithstanding the foregoing, this license will not become effective with respect to the United States Government without bVisual’s prior written approval.
13.	EXPORT CONTROLS.  This Agreement is subject to the laws, regulations, orders, decrees of the United States which may be imposed from time to time restricting the import/export of the Products to/from the United States.  You will not export or re-export the Licensed Software, or any part of the Licensed Software, directly or indirectly, prohibited by or in violation of the laws, rules or regulations of the United States or any applicable jurisdiction.  Nor will You export or re-export the Licensed Software, or any part of the Licensed Software, directly or indirectly without first obtaining the required permission to do so from the applicable governmental agencies.
14.	COMPLIANCE WITH LICENSES.  If You are a business organization, You agree that upon request from bVisual or bVisual’s authorized representative, You will within thirty (30) days fully document and certify in writing that use of any and all Licensed Software at the time of the request is in conformity with Your valid license from bVisual.
15.	MISCELLANEOUS.  This Agreement is governed by the laws of the State of Washington.  If any term or condition of this Agreement is or will become invalid or unenforceable, then such part will be ineffective to the extent of such invalidity only, without affecting this Agreement’s remaining provisions.  The remedies at law of either party in the event of default or impending default by the other party in the performance of any terms of this Agreement will not be adequate, and such terms may be specifically enforced by a decree for specific performance, injunction or other appropriate equitable relief.  This Agreement is the entire agreement between the parties with respect to the subject matter set forth herein and supersedes all prior oral written agreements between the parties with respect thereto and may only be amended in writing by the parties.  
You acknowledge having read, understood and accepted this Agreement.