END USER LICENSE AGREEMENT 1.1
IMPORTANT – READ CAREFULLY:
BY CLICKING ON THE “AGREE” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON AND THE PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“LICENSEE”, “YOU” OR “YOUR”) AND VIRTUAL EMOTION RESOURCE NETWORK, LLC. (“VERN”). BY USING THE API SERVICES AND/OR ANY SOFTWARE HEREIN DESCRIBED, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT TO VERN THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY.
- LIMITATION OF RIGHTS.Subject to the terms of this Agreement, Virtual Emotion Resource Network, LLC (“VERN “) hereby grants You (and only You) a non-sublicensable, non-transferable, royalty-free, nonexclusive license to either use the VERN on premises solution software (“SOFTWARE”) or the VERN application programming interface made available to You through vernai.com or VERN’s API platform (as defined below)(collectively, such protocols and APIs are the “API”) only during the term of this Agreement, subject to any volume, user, field of use, configuration or other restrictions set forth in the applicable pricing package and solely for the purpose of accessing data, materials and content made available by VERN through the API (the “API Content”) in connection with Your use of VERN API platform or SOFTWARE. Your use of the SOFTWARE and API is also subject to Your compliance with any additional terms and conditions that may be set forth by VERN.
- RESTRICTIONS.You will not (and will not authorize, enable or permit any third party to: (i) modify, make derivative works of, or copy or use the SOFTWARE, API or the API Content, except as expressly specified in this Agreement; (ii) reverse engineer, disassemble, decompile, or otherwise attempt to discover any source code or underlying ideas or algorithms of the SOFTWARE or API or any portion thereof (except to the extent that applicable law prohibits reverse engineering restrictions); (iii) provide, lend, sublicense, rent, loan, lease, sell, resell, transfer, assign, disclose, or otherwise distribute (except as expressly permitted herein) the API or API Content, or use the API Content in any third-party training, commercial time-sharing, or service bureau arrangement, or otherwise for the benefit of any third party; (iv) use the APIs for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement, or breach any laws or regulations, or violate the rights of third parties; (v) use the APIs in an Application that competes with products or services offered by VERN or (vi) use or access the API for purposes of monitoring the availability, performance or functionality of any of VERN products or services, or for any other benchmarking or competitive purposes (vii) interfere with or disrupt VERN services or servers or networks connected to VERN services, or disobey any requirements, procedures, policies or regulations of networks connected to VERN services, or transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through Your use of the APIs. To the extent the API consists of software, You shall use such software in object code form only. As between VERN and You, all title, ownership rights, and intellectual property rights in and to the API and the API Content, and any copies or portions thereof, shall remain in VERN and its suppliers or licensors, and that this Agreement does not give You any rights except for those expressly granted herein. For clarity, except as expressly set forth herein, this Agreement does not include any right for You to use any trademark, service mark, trade name, patent(s) or other designation of VERN or any other party or licensor. You understand that VERN may modify or discontinue offering the SOFTWARE or API and/or any API Content at any time for any reason.
Any update to the SOFTWARE or API provided to You is made on a license exchange basis such that You agree, as a condition for receiving an update, that You will terminate Your use any previous version of the SOFTWARE. VERN may automatically check the API Service and/or Your version of the SOFTWARE and may automatically update the API Service and/or SOFTWARE from time to time. You agree to accept such updates subject to this Agreement. VERN reserves the right to modify this E.U.L.A. at our discretion and continued use of the SOFTWARE or API acknowledges acceptance of the modifications contained within the latest version.
USE OF THE API OR SOFTWARE .You will be required to create an account to use the SOFTWARE or have access to the API service. If You are entering into this agreement on behalf of an entity, You represent and warrant that the entity will utilize the API services and/or SOFTWARE under a single account. You agree not to impersonate any person or entity or misrepresent Your identity or affiliation with any person or entity, including using another person’s username, password, or other account information. You are responsible for the security of Your password or keys and for any use of Your account. You also agree to notify us promptly at firstname.lastname@example.org of any unauthorized use of Your username, password, other account information, or any other breach of security that You become aware of involving or relating to the API or SOFTWARE. VERN will be available during normal business hours for support on Your inquiries. You will designate a primary contact to send and receive inquiries.
There is a fee associated with Your use of the API or Software according to the options provided at https://vernai.com/pricing/. The fee charged excludes all applicable taxes and currency exchange settlements, unless stated otherwise. You are solely responsible for paying such taxes or other charges. VERN may suspend or cancel Your access to the API or Software if VERN does not receive payment from You within 15 days after due. Suspension or cancellation for non-payment may result in a loss of access to the SOFTWARE or API and use of Your account. VERN uses stripe.com as its payment processor although if necessary alternative methods of payment may be made available. Any surcharges or fees incurred by VERN for insufficient funds because of licensee shall be immediately reimbursable. You agree to always keep Your billing account information current. By providing VERN with Your payment method, You (a) represent that You are authorized to use the payment method that You provided and that any payment information You provide is true and accurate; and (b) authorize VERN to charge You using Your payment method and to charge You for any paid feature that You choose to sign up for or use while this Agreement is in effect. You acknowledge and agree that VERN through stripe.com may bill You on a recurring basis for the API or SOFTWARE subscription. If You take part in any trial offer, understand the trial period will expire upon either event occurring first: 30 calendar days from sign-up or upon execution of 10,000(Ten Thousand) API calls. VERN may change the price it charges for the API or SOFTWARE at any time and will notify You in advance of such changes. If You do not agree to the price change, You must cancel and stop using the API or SOFTWARE before the price change takes effect. If there is a fixed term and price for Your API or SOFTWARE services offer, that price will remain in force for that term. If there is a pricing structure for the API based on a price per call and VERN believes that You have attempted to exceed or circumvent these limitations, Your ability to use the VERN API may be temporarily or permanently blocked. Unless otherwise provided by law or by a particular offer, all purchases are final and non-refundable.
VERN may collect information that You voluntarily submit to VERN, for example:
(a) When You are registering, requesting information and/or placing an order through our website or dashboard primarily through cookies*;
(b) Identifying information such as name and email address;
(c) Security information such as username, password, and acceptance of policies, licenses and warranties;
(d) Contact information such as company name, mailing address and phone number;
(e) Queries and responses to Customer Service and/or Technical Support;
(f) Communications sent by You for analysis by VERN**;
(g) Date, time, and user requesting the analysis;
(h) Analysis provided by VERN of Your communications.
*Cookies are text files placed on Your computer to collect standard Internet log information and visitor behavior information. When You visit our website, we may collect information from You automatically through cookies or similar technology. VERNs cookies function in a range of ways to improve Your experience on our website, including keeping You signed in understanding how You use our website. You can set Your browser not to accept cookies although in a few cases, some of our website features may not function as a result. For further information, visit allaboutcookies.org.
**Licensee is responsible for the sanitization of all personally identifiable information regarding their users in compliance with all regulatory requirements prior to submission.
VERN collects this information for IP protection such as piracy or theft, our internal employee audits regarding customer service, internal testing for speed, reliability, billing and accuracy, client reporting tools and to provide our licensees with a back-up to the data analyzed.
VERN has enacted several security precautions to include but not limited to unique encrypted access keys and encryption for all information stored on VERN employed servers. In the event of a security breach of VERN systems, VERN agrees to notify users via their supplied email address as to the severity of the breach within 1 business day of the breach being identified.
VERN employs third party vendors, service providers and suppliers to perform various functions on our behalf. Third-party services may include but are not limited to customer information management; processing credit card or check card payments analyzing data; developing, hosting, and maintaining our websites and databases. VERN does not authorize any of these service providers to make any other use of Your information or to contact You outside the context of these services.
At the end of the user’s subscription, at Your request VERN agrees to destroy all user’s personally identifiable data by means of overwrite a minimum of five (5) times. You have the option for an additional fee of requesting that VERN freeze the account and all user specific data therein for an agreed upon period. At the end of that freeze period, if You choose not to extend the freeze then all data will be destroyed in accordance with the VERN data retention policy. Specific data for university or government research purposes shall be archived and will not be destroyed until VERN receives a written instruction to do so. At any time during Your subscription, You may request copies of Your information and VERN will have 30 days to provide after appropriate fee has been paid.
VERN employs standard software logging capabilities for troubleshooting/auditing activities. You may formally request access to log data for Your own internal auditing activities, VERN agrees to supply You with a copy of Your activities for a fixed period (day, week). The data will be delivered in a standard comma separated format.
We will disclose information in response to subpoenas, court orders and other legal processes as well as to establish/exercise our legal rights or defend against legal claims. We will share personal and non-personal data to investigate, prevent or act against illegal activities, suspected fraud, potential threats to the physical safety of any person, violations of our EULA or as otherwise required by law.
INDEMNITY. You agree that VERN shall have no liability whatsoever for any use You or any third party make of the information provided by the API or SOFTWARE. VERN does not make definitive determinations of emotional content; it provides a confidence score of the indication of emotion. No confidence score can ever achieve a 100% accuracy. It is Your sole responsibility to do Your own due diligence and research to determine what to do, if anything, with the information provided to You by our SOFTWARE or API. You hereby agree to indemnify and hold harmless VERN from any and all damages, losses, liability, costs, and expenses (including reasonable attorney’s fees) arising in any manner from Your use of the API and/or SOFTWARE.
WARRANTY DISCLAIMER. VERN PROVIDES THE API AND SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND, EXCEPT FOR BODILY INJURY, VERN HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
LIMITATION OF LIABILITY. Under no circumstances and under no legal theory, including, without limitation, tort, contract, strict liability, or otherwise, shall VERN or its licensors, suppliers or resellers be liable to You or any other party for (i) any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for lost profits, loss of goodwill, work stoppage, accuracy of results, computer failure or malfunction, or damages; (ii) loss or inaccuracy of data or cost of procurement of substitute goods, technology or services; or (iii) for any matters beyond its reasonable control. VERN shall not be liable to You under this agreement for any direct damages in excess of five hundred US dollars ($500).
TERMINATION. You may terminate this Agreement and the license granted herein at any time by removing the SOFTWARE from all computers, networks, and storage media or discontinuing use of the API. VERN may terminate this Agreement and the license granted herein immediately if You breach any provision of this Agreement, failure to pay subscription fees or if You otherwise engage in any activity that VERN reasonable determines is likely to cause liability to VERN. VERN may otherwise terminate this Agreement upon thirty (30) days advance notice to You (which may be provided by e-mail to You). Upon receiving notice of termination from VERN You will remove the SOFTWARE from all computers, networks, and storage media all copies of as well discontinuing use of the API key.
SUPPORT. While VERN shall have customer service available for its licensees during regular business hours, this Agreement does not entitle You to any support, upgrades, patches, enhancements, or fixes for the API or SOFTWARE(collectively, “Support”). VERN may, at its sole discretion, provide support services, and any such services shall become part of the API or SOFTWARE and subject to this Agreement. You agree to report to VERN any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties including without limitation, those related to interoperability. You agree that VERN shall be free to freely use, disclose, reproduce, license, distribute and otherwise exploit any such reports (and any other suggestions, improvements, or modifications) that You provide to VERN relating to the API and/or SOFTWARE, without obligation or restriction of any kind on account of intellectual property rights or otherwise.
INTEROPERABILITY. You shall endeavor to inform VERN with respect to the interoperability and compatibility of Your products with VERN’s API and SOFTWARE as contemplated herein, and any issues or problems with respect thereto; You will use its best efforts to achieve full interoperability and compatibility.
US GOVERNMENT RESTRICTED RIGHTS. If You are a government agency, You acknowledge that the Software was developed at private expense and that the SOFTWARE and/or API is provided to You subject to RESTRICTED RIGHTS. Notwithstanding any other lease or license agreement that may pertain to, or accompany the delivery of, this restricted SOFTWARE and API, the rights of the government regarding its use, duplication, reproduction or disclosure by the Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the rights in Technical Data and Computer Software clause at DFARS 252.227‑7013 (48 C.F.R. § 252.227-7013), and subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227‑19. You further agree that the Software is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government 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 of this Agreement. Contractor/manufacturer is Virtual Emotion Resource Network, LLC.
EXPORT CONTROLS. In Your use of the API or Software, You agree to comply with all applicable laws and regulations. You shall, in connection with Your use of the API or Software, comply with all applicable import, export and re-export control laws and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the API or Software, including Your transfer and processing of Your data via the API or Software.
CONFIDENTIALITY. You may be given access to certain non-public information, software, and specifications relating to the SOFTWARE or API (“Confidential Information”), which is confidential and proprietary to VERN. You may use this Confidential Information only as necessary in exercising Your rights granted in this Agreement. You may not disclose any of this Confidential Information to any third party without VERN’s prior written consent. You agree that You will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that You would use to protect Your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
OPPORTUNITY TO CURE. Prior to any claim for damages being made, You must provide VERN with notice specifying in reasonable detail the grounds for the alleged deficiencies in performance and VERN shall have a reasonable opportunity to cure any alleged defect in performance. You agree to contact VERN at least ninety days prior to commencing any legal action if a dispute arises.
APPLICABLE LAWS AND JURISDICTION. The laws of the State of Michigan, USA, excluding its conflicts of law rules, govern this license and Your use of this SOFTWARE or API. Your use of this SOFTWARE or API may also be subject to other local, state, national, or international laws. This EULA shall not be governed by United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Licensee submits itself to jurisdiction in the State of Michigan and venue in the county of Ingham. Licensee waives any and all rights to contest said jurisdiction and venue and the convenience of any such forum, and any and all rights to remove such action. Licensee further waives any rights to commence any action against VERN in any jurisdiction except in the County of Ingham and State of Michigan.
BINDING ARBITRATION. You and VERN agree to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of relating to this EULA to binding arbitration rather than by filing any lawsuit in any forum set forth in section directly above. Further You agree that arbitration is final and binding. You also waive Your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to Your use of the SOFTWARE or API.
ARBITRATION PROCEDURES. As previously stated, You must first present any claim or dispute to VERN to allow us to resolve or cure the dispute. You may request arbitration if Your claim or dispute cannot be resolved within 90 days after presenting the claim or dispute. VERN may request arbitration against You at any time after it has notified You of a claim or dispute. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this EULA. The place of any arbitration will be Lansing, Michigan, USA and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this EULA provides, order consolidation or arbitration on a class wide or representative basis, or award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator on an individual basis damages required by state and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither You, nor VERN, nor the arbitrator may disclose the existence, content, or results of any arbitration, except as may be required by law or for the purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall be given full force and effect.
NO CLASS ACTIONS. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or involving claims brought in a purported representative capacity on behalf of the general public(including, but not limited to, as a private attorney general).
FEES AND EXPENSES. All administrative fees and expense of arbitration will be divided equally between You and VERN. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
YOU MUST CONTACT VERN WITHIN (3) MONTHS OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE. This arbitration clause shall survive termination of these Terms.
CONFIDENTIALITY AND IP RIGHTS. Notwithstanding the foregoing, VERN may seek injunctive or other such equitable relief to protect confidential information and intellectual property in any court of competent jurisdiction.
ENTIRE AGREEMENT; SEVERABILITY. This EULA is the entire agreement between You and VERN relating to the SOFTWARE and API and supersedes all prior written communications, proposals, and representations with respect to the SOFTWARE and API or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full and force and effect. VERN reserves the right to amend this EULA, at its sole discretion. Posting of any amended EULA at vernai.com shall be deemed to be an amendment and/or a replacement of this EULA.