VizSeek Desktop App

End User License Agreement

IMPORTANT - READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE VIZSEEK DESKTOP APP (THE "SOFTWARE").

This End-User License Agreement ("EULA" or "Agreement") is a binding legal agreement between you ("You") and Imaginestics, LLC (the "Company" or "Imaginestics"), which sets forth the terms and conditions under which you are licensed to use the Software being distributed with this EULA.

Your right to use the Software is subject to your agreement to be bound by the terms and conditions of this Agreement. By clicking the "I agree" checkbox end of the Agreement and installing and/or using the Software, you acknowledge your acceptance of the Agreement. If you do not agree to these terms and conditions, do not click the "I agree" checkbox and do not download or install the Software.

1. Introduction

The Software licensed hereunder constitutes part of the "Services" offered by Imaginestics at VizSeek.com. Your installation and use of the Software is subject to your compliance with this Agreement and VizSeek's Terms of Service at https://www.vizseek.com/vizSeekTerms.aspx (the "Website Terms of Service"). For purposes of this Agreement, "Software" means Imaginestics' proprietary software program for synchronizing your desktop and VizSeek Enterprise files and products, together with any upgrades, modifications, corrections or enhancements, software program documentation, or related information or materials that may be made available by Imaginestics pursuant to this Agreement; and "You" or Your" refers to the individual or entity that has agreed to use the Software in accordance with the terms and conditions of this Agreement and Imaginestics' Website Terms of Service.

2. License

2.1. License to You. Subject to and conditioned upon your compliance with this Agreement and Imaginestics' Website Terms of Service, Imaginestics hereby grants You, for the term of this Agreement, a personal, non-exclusive, non-transferable, non-sub-licensable, royalty-free license to download, install and use the Software, in object code form, on a computer owned or controlled by you for the sole purpose of enabling you to synchronize your desktop files and folders with certain VizSeek Enterprise files and folders in connection with your use of the Services in the manner permitted by this Agreement and Imaginestics' Website Terms of Service. The Software contains valuable trade secrets and is proprietary and confidential to Imaginestics. You do not have the right to, and You will not, provide, disclose, or otherwise make available the Software to any person or entity.

2.2. License to Imaginestics. You grant to Imaginestics and its contractors an irrevocable, royalty-free, worldwide license to access, use, modify, and delete any information, materials, data, files, programs, ideas and opinions provided or made available by You ("Your Content") through the use of Software for the sole purpose of synchronizing the services made available through the Software with the services made available through the Website.

2.3. Copies. You may make one copy of the Software solely for archival purposes and one copy for backup purposes. All copies of the Software will be the exclusive property of Imaginestics and subject to the terms and conditions of this Agreement.

2.4. Further Restrictions. The license granted in Section 2.1 is expressly made subject to and conditioned upon the following limitations and restrictions: You may not (a) use or reproduce the Software beyond the scope of the license granted in this Section 2; (b) disclose, publish, sublicense, distribute or otherwise make available the Software to any third party or permit others to use the same, except as expressly permitted in Section 3; (c) remove, alter or otherwise obscure any copyright, trademark or other proprietary or restrictive notice or legend on or within the Software (or copies thereof made in accordance with this Agreement); (d) modify, alter, translate or otherwise create derivative works of the Software; (e) except as and only to the extent such activity is expressly permitted by applicable law notwithstanding this provision, decompile, disassemble or otherwise reverse engineer or attempt to deconstruct or discover any source code or underlying ideas or algorithms of the Software; or (f) assign, rent, lease, sell or otherwise transfer (whether by contract, operation of law or otherwise) the Software.

2. 5. Reserved Rights. The Software is licensed, not sold to you. All rights not expressly granted to You herein are reserved by Imaginestics and/or its licensors. You agree that You shall not use or copy the Software except as expressly authorized in this Agreement.

2.6. No Implied License. Nothing in this Agreement shall be construed as granting You any right, license or immunity under any intellectual property right of Imaginestics by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

3. Ownership

Imaginestics retains sole and exclusive ownership of the Software, including all patent, copyright, trademark, trade secret and other intellectual property rights therein. You acquire no rights in the Software, except as expressly provided in this Agreement.

4. Term and Termination

This license granted to you hereunder is effective until terminated by either party for any reason. You may terminate this Agreement at any time by destroying all copies of the Software. Your right to use the Software will terminate immediately and automatically, without any notice from Imaginestics, in the event that you fail to comply with any of the terms and conditions of this Agreement or the Website Terms of Service. Promptly upon termination, you must cease all use of the Software and destroy all copies of the Software in your possession or control. Termination will not limit any of Imaginestics' other rights or remedies at law or in equity. Sections 2.2, 2.5, 2.6, 3, 4, 6, 7, 8 and 9 shall survive termination or expiration of this license for any reason.

5. Software Updates; Changes. Imaginestics reserves the right, in its sole discretion, to make unscheduled deployments of updates or enhancements to the Software. Customer acknowledges and understands that during such deployments, certain functionality of the Software may be unavailable and outages may occur. Imaginestics may also modify, replace, refuse access to, suspend or discontinue the Software or change the terms and conditions of the license to the Software, partially or entirely at any time in our sole discretion.

6. Warranty Disclaimer

THE SOFTWARE IS PROVIDED BY IMAGINESTICS TO YOU "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IMAGINESTICS MAKES NO REPRESENTATION OR WARRANTY REGARDING THE FUNCTIONALITY, RELIABILITY OR PERFORMANCE OF THE SOFTWARE, OR THE RESULTS TO BE OBTAINED THROUGH THE USE OF THE SOFTWARE, OR THAT THE OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES SO THE FOREGOING DISCLAIMER OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

7. Exclusion of Damages; Limitation of Liability

7.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL IMAGINESTICS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA, USE OR BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, EVEN IF IMAGINESTICS HAS BEEN ADVISED OF OR SHOULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

7.2 IN NO EVENT SHALL IMAGINESTICS' TOTAL AND AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE EXCEED THE AMOUNT PAID BY YOU TO IMAGINESTICS, IF ANY, FOR THE SOFTWARE.

7.3 THE EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 7 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY), INDEMNIFICATION, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

8. Governing Law; Venue.

This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the state of Indiana, without giving effect to any principles of conflicts of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or to any dispute or transaction arising out of this Agreement. The Federal or state courts located in Lafayette, Indiana, USA, shall have exclusive jurisdiction and venue over any disputes arising out of or relating to this Agreement. The parties hereby consent to in personam jurisdiction in such courts.

9. General.

The failure of Imaginestics to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement; you agree that the court should endeavor to give effect to the intentions of Imaginestics and You as reflected in the provision, and that the other provisions of this Agreement shall remain in full force and effect. This Agreement, and any rights and licenses granted hereunder, may not be assigned or transferred by you, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Imaginestics (and any attempt to do so shall be null and void). This Agreement, and any rights and licenses granted hereunder, may be assigned or transferred by Imaginestics without restriction and without your consent. This Agreement and Imaginestics' Website Terms of Service constitute the final, complete and exclusive statement of the agreement between you and Imaginestics regarding the subject matter hereof, and supersede any prior agreements, negotiations or communications between you and Imaginestics with respect to such subject matter.