END USER LICENSE AGREEMENT
1.1 IMPORTANT – Use of the Noblis computer software program or application(s) (“Noblis Software”) is conditioned upon acceptance of this End User License Agreement (“EULA”). This EULA is by and between Noblis (“Noblis”) and the end user (“You” or the “Authorized User”), through the authorized representative of the purchasing entity identified in the applicable order documentation (“Order”) for the Noblis Software. The “Software” shall mean Noblis’ cloud-based, remotely accessible software application service product known as nVision. nVision is a software application that supports the grants application process.
1. LICENSE GRANT. The Noblis Software is provided by Noblis, and such software may include manuals, instructions, or other documentation as provided by Noblis from time to time (“Documentation”). Unless otherwise stated, all references herein to the Noblis Software shall include any such Documentation provided by Noblis in any form or medium from time to time, and which describe the functionality, components, features, or requirements of the Noblis Software, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof. This EULA provides to You a limited, revocable, non-exclusive, non-transferable, and non-assignable license to use internally the Noblis Software conditioned on your continued compliance with the terms and conditions of this EULA. You shall use the Software solely in furtherance of your government facility’s or office’s public purpose and not for any commercial business purpose. Additional usage parameters may be set forth on the applicable Order and with respect to the permissible number of users, devices, computers, or systems with which the Noblis Software may be utilized.
2. RESTRICTIONS. You acknowledge that this right to use and access the Software does not permit You to receive a copy of the source or object code to the Software. Further, You shall not use the Software or Documentation for any purposes beyond the scope of the access and use rights granted in this EULA. Without limiting the foregoing and except as otherwise expressly set forth in this EULA, You shall not at any time, directly or indirectly (including through any agency, department, contractor, consultant, or advisor): (i) modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Noblis Software in any manner not expressly permitted herein; (ii) translate, reverse engineer, decompile or disassemble the Noblis Software, except to the extent applicable laws specifically prohibit such restriction; (iii) alter or remove any copyright or proprietary rights notices or legends appearing on or in the Noblis Software; or (iv) disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure implemented in or with the Noblis Software. In connection with the foregoing, You agree to take reasonable steps to prevent such unauthorized utilization. You shall promptly notify Noblis of any known, threatened or suspected infringement or unauthorized use of the Noblis Software (or any component thereof) by any third party. Noblis, in its sole discretion, shall determine what action, if any, should be taken in response to any such infringement or unauthorized use. You shall take no action to enforce any rights in the Noblis Software against any third party without the prior written approval of Noblis, which Noblis may withhold in its sole discretion. You shall cooperate with all reasonable requests for assistance by Noblis in connection with all of the foregoing, including, without limitation, making personnel available to testify and providing relevant documentation and information. To ensure use in connection with the limited license grant herein, Noblis shall have the right, with reasonable prior notice, to audit your use of the Software and audit your related records for the purpose of confirming your compliance with this EULA. Such audit may be conducted no more than once per twelve (12) months and shall be conducted during your normal business hours and in a manner not to disrupt your normal business operation. If the audit reveals that You have underpaid any fees to Noblis, and You do not dispute such underpayment, You shall pay to Noblis an amount equal to such underpayment within thirty (30) days of the date it receives notice of such underpayment. The parties will bear their own respective costs and expenses associated with any of the foregoing.
3. AUTHORIZED USER OBLIGATIONS. You are responsible for maintaining the confidentiality of user identifications and passwords. You further agree that You shall: (a) disclose the user identifications and passwords only to your Authorized Users; (b) instruct your Authorized Users to protect the user identifications and passwords against disclosure to third parties; and (c) if an Authorized User leaves your employ, You will be responsible for de-activating the user identification and password. You are responsible and liable for all uses of the Software and Documentation resulting from access provided by You, directly or indirectly, whether such access or use is permitted by or in violation of this EULA. You represent and warrant that You have the requisite power and authority to enter into this EULA and/or perform the Authorized User’s obligations hereunder, and this EULA is a legal, valid, and binding obligation enforceable in accordance with its terms. You must use the Noblis Software in compliance with all applicable laws with respect to your use. In particular, You shall not export the Noblis Software (or access thereto) without complying with such laws, orders, restrictions, or regulations. Unless otherwise agreed, You also agree to assume all responsibility for obtaining and paying for all licenses and costs for third party software and hardware necessary for implementation of the Noblis Software and maintaining and backing up any of your data notwithstanding any of Noblis’ responsibilities. Any support, training, updates, upgrades, storage, security, or maintenance of or for the Noblis Software shall only be available pursuant to the terms and conditions of a separate written agreement with Noblis.
4. CONSIDERATION. License fees for the Noblis Software are payable in accordance with the terms of the applicable order documentation. Failure to make payment of any amount due to Noblis thereunder shall be deemed a material breach of this EULA, terminable in accordance with the provisions hereof. All payments shall be made in U.S. Dollars without deduction, set-off, or counterclaim. You shall pay all federal, state, and local sales or use taxes or other duties assessed against its receipt and use of and payment for Software hereunder
5. FEEDBACK. If You send or transmit any communications or materials to Noblis by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or related Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Noblis is free to use such Feedback irrespective of any other obligation or limitation. You hereby assign to Noblis on your behalf all right, title, and interest in the Feedback, and Noblis is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Noblis is not required to use any Feedback.
6. OTHER TERMS AND CONDITIONS. This EULA remains subject to the applicable Order and the associated governing agreement as applicable and as mutually agreed upon and signed separately by Noblis. This EULA is only for the permitted licensed use of the Noblis Software. But in the event of any conflict between such Order (or associated governing agreement) with respect to use of the Noblis Software, this EULA shall control.
7. CONFIDENTIALITY. You agree to maintain the Noblis Software in confidence. Accordingly, You shall secure and protect the Noblis Software in a manner consistent with the maintenance of Noblis’ rights therein. Furthermore, You understand, acknowledge, and agree that when using the Noblis Software, You may view or receive other confidential, sensitive, non-public, and/or proprietary information belonging to NOBLIS and/or its third-party providers (“Confidential Information”). You may not share, transmit, or otherwise disclose such Confidential Information to any third party for any purpose whatsoever, or provide any third party with access to the Noblis Software which would allow such third party to view or receive Confidential Information. You may not make any copy, reproduction, or derivation of any Confidential Information made available to You through the Service in any medium without Noblis’ express prior written permission in each instance, which may be granted or withheld in Noblis’ sole and absolute discretion. Without limiting the foregoing, upon the termination of this EULA for any reason, You must immediately delete any Confidential Information, together with all copies, reproductions, or derivations thereof in any medium, in your possession or control. The foregoing obligation(s) shall not apply in the event You must disclose the Confidential Information: (i) as reasonably necessary to effectuate the term of this EULA; (ii) for required tax, financial reporting, or other government (or regulatory) compliance purpose(s) and so long as any such authorized recipient is first advised that such disclosure and use is subject to this confidentiality provision of this EULA; or (iii) to any other person or entity, if required by an applicable order, law, rule, or regulation of a court or body with competent jurisdiction and provided that such recipient is advised that such disclosure and use is subject to the confidentiality provision of this EULA and the disclosure is limited to that portion of the Confidential Information required to be disclosed by the applicable court or body and the applicable order, law, rule, or regulation.
8. PROPRIETARY RIGHTS. This EULA provides only a limited license to use the Noblis Software. Nothing in this EULA shall be deemed to restrict or limit in any way, Noblis’ right to directly or indirectly market, license, use, or distribute its products and services, including the Noblis Software, anywhere in the world or to any other party or person. The Noblis Software is proprietary to Noblis, and all right, title and interest thereto remains solely with Noblis or its authorized suppliers. Except as expressly provided herein, Noblis does not grant any other express or implied right to the Noblis Software to You or any other person or entity. No title to or ownership of the Noblis Software or any permitted copies thereof, or to any intellectual property or proprietary rights therein, is transferred to You. You acknowledge that the Noblis Software constitute valuable proprietary products and trade secrets of Noblis, embodying substantial creative efforts and Confidential Information (defined herein), ideas, and expressions. All applicable rights to patents, copyrights, trademarks, and trade secrets in the Noblis Software shall remain solely with Noblis. You shall not use Noblis’ name or any Noblis product name, logo, trademark, service mark, or other designation in any manner, except to identify Noblis as the source of the products and services provided hereunder, without the prior written consent of Noblis.
9. THIRD-PARTY MATERIALS. You acknowledge that the Noblis Software may include or incorporate certain code, content, tools, components, and other materials owned by and/or licensed from third parties (“Third Party Materials”). The restrictions contained herein with respect to Your use of the Noblis Software generally apply in full force and effect to all Third Party Materials included or integrated in the Noblis Software. Without limiting any other disclaimer or provision herein, You acknowledges that Noblis makes no representation or warranty of any kind with respect to the quality, accuracy, or integrity of Third Party Materials.
10. GOVERNMENT RESTRICTED RIGHTS. The Noblis Software is provided to the United States of America and its or their respective instrumentalities, agencies, or offices, regardless of form (collectively, the “Government”) with RESTRICTED RIGHTS and/or LIMITED RIGHTS, as applicable. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (g) of the Rights in Data — General clause at 48 C.F.R. 52.227-14, or subparagraphs (b)(1) and (2) of the Commercial Computer Software License at 48 C.F.R. 52.227-19, as applicable. Moreover, all Noblis products and materials, including the Noblis Software, are commercial in nature, developed at private expense, and were not first produced in the performance of any Government contract. Accordingly, the data, software, and documentation available through the Noblis Software are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
11. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY AGREED BY NOBLIS, THE NOBLIS SOFTWARE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND NOBLIS MAY MAKE MODIFICATIONS AND/OR CHANGES IN THE NOBLIS SOFTWARE AT ANY TIME AND FOR ANY REASON. YOU ASSUME FULL RESPONSIBILITY FOR: (i) THE SELECTION OF THE NOBLIS SOFTWARE; (ii) THE PROPER INSTALLATION AND USE OF THE NOBLIS SOFTWARE; (iii) VERIFYING THE RESULTS OBTAINED FROM THE USE OF THE NOBLIS SOFTWARE; (iv) TAKING APPROPRIATE MEASURES TO PREVENT LOSS OF DATA, PROTECT AGAINST VIRUSES AND PROTECT AGAINST SECURITY BREACH; AND (v) PROCURING AND MAINTAINING THE PROPER HARDWARE, SYSTEMS, AND/OR NETWORK INFRASTRUCTURE REQUIRED FOR OPERATION OF THE NOBLIS SOFTWARE. NOBLIS DOES NOT WARRANT THAT THE QUALITY OR PERFORMANCE OF THE NOBLIS SOFTWARE SHALL MEET YOU’S REQUIREMENTS; THAT THE NOBLIS SOFTWARE WILL BE COMPATIBLE WITH ANY PARTICULAR USER PLATFORM OR INTERFACE; THAT YOU SHALL BE ABLE TO ACHIEVE ANY PARTICULAR RESULTS FROM USE OF THE NOBLIS SOFTWARE; OR THAT THE NOBLIS SOFTWARE SHALL OPERATE FREE FROM ERROR. OTHER THAN THE RIGHT TO FULFILL ITS OBLIGATIONS UNDER THIS EULA OR ANY OTHER AGREEMENT TO WHICH NOBLIS HAS AGREED TO TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOBLIS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF INTERFERENCE WITH ENJOYMENT OF INFORMATION, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT NOBLIS SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY CLAIM, DAMAGE, OR LOSS RESULTING FROM A CAUSE BEYOND NOBLIS’ CONTROL. NOBLIS ALSO ASSUMES NO RESPONSIBILITY FOR YOUR FAILURE TO COMPLY WITH ANY APPLICABLE LAW OR REGULATION. YOU ALSO ACKNOWLEDGE AND AGREE THAT NOBLIS WILL NOT BE LIABLE TO YOU, OR ANYONE CLAIMING UNDER OR THROUGH YOU, FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF BUSINESS, PROFITS, OR INFORMATION), REGARDLESS OF WHETHER NOBLIS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR INDIVIDUAL RIGHTS DIFFER FROM ANY OBLIGATIONS THAT NOBLIS MAY OWE TO ANY ENTITY PURSUANT TO A SEPARATE WRITTEN AGREEMENT WITH NOBLIS. ACCORDINGLY, THE ENTIRE LIABILITY OF NOBLIS FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS EULA SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
13. TERM AND TERMINATION. This EULA shall be in effect for the duration of time set forth in the applicable order documentation agreed to by Noblis and shall commence the earlier of the Order date, date of first use, or date of first access by You (“Effective Date”). Unless otherwise agreed, such duration of time shall be for one or more twelve (12) month periods that may be renewable on the anniversary date set forth in the applicable Order as agreed to in the applicable Order by Noblis. This EULA may be terminated by NOBLIS if after thirty (30) days’ notice from NOBLIS, a material breach of this EULA by You remains uncured. This EULA may be terminated without cause by LICENSEE at any time upon thirty (30) days’ notice to NOBLIS. Upon expiration or termination of this EULA for any reason, You shall cease all use of and access to the Noblis Software. Termination or expiration does not relieve You of its obligations regarding confidentiality of the Noblis Software or any outstanding obligations to pay fees applicable to the period prior to termination or expiration. Termination under this Section is in addition to, and not in lieu of, any other remedies available to NOBLIS at law or in equity. Upon expiration or termination of this EULA, You must destroy all copies of any aspect of the Noblis Software in your possession. Further, on the expiration or termination of this EULA, You shall promptly return to Noblis all copies, whether in written, electronic, or other form or media, of Noblis’ Confidential Information, or destroy all such copies and certify in writing to Noblis that such Confidential Information has been destroyed. Your obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to You; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this EULA for as long as such Confidential Information remains subject to trade secret protection under applicable law.
14. GOVERNING LAW. This EULA is governed by and construed in accordance with applicable U.S. federal law. You acknowledge and agree that a breach or threatened breach by an Authorized User of this EULA would cause Noblis irreparable harm for which monetary damages would not be an adequate remedy. You therefore agree that, in the event of such breach or threatened breach, Noblis will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available to Noblis at law, in equity, or otherwise.
15. PRIVACY POLICY. To use the Software, an Authorized User may be asked to provide the following information: name, title, email address, phone number that will be gathered (“Personal Information”). It is Noblis’ intent to guard this Personal Information from unauthorized disclosure by reasonable technological measures. Personal Information provided to Noblis is not, however, protected by encryption technology, and we cannot guarantee that all of your Personal Information will never be disclosed in unintended ways. We do not give or sell Personal Information about our registered users to any third party, except as required by law or as necessary to provide services to our customers. Noblis may collect, maintain, process and use diagnostic, technical, usage and related information about Licensee’s computers, systems and software, periodically to improve the performance of the Software or develop maintenance releases. Personal Information will be treated in accordance with Noblis’ privacy policy, as amended from time to time, which can be viewed at: https://noblis.org/privacy-policy/ or successor a website address.
16. MISCELLANEOUS. This EULA is personal to You, and You may not assign your rights or obligations to any other person or entity without Noblis’ prior written consent. Failure by Noblis to insist on strict performance of any of the terms and conditions of this EULA will not operate as a waiver by Noblis of that or any subsequent default or failure of performance. If any provision (or part thereof) contained in this EULA is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language. No joint venture, partnership, employment, or agency relationship exists between You and Noblis as a result of this EULA or your utilization of the Noblis Software. Headings herein are for convenience only. This EULA, together with any associated Order (and the governing agreement by which this EULA is incorporated by reference) constitute the entire agreement between You and Noblis with respect to use of the Noblis Software and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this EULA is effective unless it is in a separate writing signed by an authorized representative of You and Noblis.
