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End User License Agreement

This End User License Agreement (“the Agreement”) governs the use of the applications made available by Vityl, Inc., a Delaware corporation (the “Company”); any third-party software made available in conjunction therewith; any associated media, material, or printed documentation; and any copy or component part of any of the foregoing (collectively, “the Product”).  This Agreement is made and entered into by and between the Company and the User (each, a “Party,” and together, “the Parties”).  The term “User” means any person or entity using the Product for any purpose whatsoever.  By installing, operating, or otherwise using the Product, the User agrees to be bound by the terms of this Agreement.  If the User does not agree to be bound by the terms of this Agreement as currently written or as may hereafter be modified, the User (1) must not use the Product, and (2) must remove the Product from any device in the possession or control of the User and destroy and/or return such Product to Company.  COMPANY RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME IN ITS SOLE AND ABSOLUTE DISCRETION AND WILL PROVIDE THE USER WITH ADVANCE WRITTEN NOTICE OF ANY SUCH MODIFICATIONS.  ANY MODIFICATIONS WILL APPLY AT ALL TIMES THEREAFTER.

  1. Grant of License.  Company hereby grants to the User a limited, non-exclusive, revocable, non-sublicensable license to use the Product solely in accordance with the terms of the authorization, work order, or other writing reflecting the terms that have been accepted by the User or the person or entity that has employed or engaged the User (the “Authorization”).  Use of the Product operates as the User’s consent to the transmission of standard device information (including but not limited to technical information about your device, system and software, and peripherals) for Internet-based or wireless services.  Company is not responsible for providing support services for the Product except as may be stated in the Authorization.
  2. Scope of License.  Company grants the User a license only to make limited use of the Product as specified in the Authorization; any rights not granted hereby or thereby are reserved.  Notwithstanding the foregoing, the User is expressly prohibited from engaging in the following activity:
    1. Sublicensing, selling, transferring, assigning, distributing or otherwise granting or enabling access to the Product in a manner that allows anyone other than an authorized user to access or use the Product, or to commercially exploit the Product;
    2. Using the Product to provide, or incorporating the Product into, any product or service provided to a third party;
    3. Using the Product to develop a similar or competing product or service;
    4. Copying, modifying, or creating any derivative work from the Product;
    5. Sending or storing infringing or otherwise unlawful material – including material violative of third-party privacy rights, material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents – by use of the Product;
    6. Modifying, adapting, translating, preparing derivative works from, decompiling, reverse engineering, disassembling or otherwise attempting to derive source code from the Product;
    7. Interfering with or disrupting the integrity or performance of the Product (or the data contained therein);
    8. Seeking to gain unauthorized access to the Product (including unauthorized features and functionality) or its related systems or network;
    9. Disabling or bypassing the measures that Company may use to prevent or restrict access to the Product or using the Product in excess of the rights granted in the Authorization;
    10. Removing, obscuring, or altering Company’s or any third party’s copyright notice, trademarks, or other proprietary rights notices that are displayed, affixed to, or contained within or accessed in conjunction with or through the Product;
    11. Separating any component parts of the Product for use on more than one computer;
    12. Using the Product for any illegal purpose, or violating any applicable law with respect to the Product;
    13. Exporting or re-exporting the Product, except as authorized by applicable law;
    14. Using the Product in a manner that could damage, disable, overburden, or impair any server or system belonging to Company or interfere with any other party’s use of the Product;
    15. Providing Company with any false or misleading information;
    16. Encouraging any third party to take or facilitating any of the actions addressed in this Paragraph 2.
  3. Ownership Rights.  This Agreement does not grant the User any ownership interest in the Product, nor any other right or interest that is not explicitly identified in this Agreement.  Specifically, the User acknowledges that Company owns all right, title and interest in and to the Product and all portions thereof, including without limitation all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect throughout the world.  The User also grants to Company a limited, paid-up, perpetual, irrevocable, sublicensable worldwide license to use any feedback or other data the User makes available to Company by means of use of the Product for the purpose of marketing or improving the Product – expressly provided that Company excludes any personally identifiable information or information sufficient to enable a third party to determine the source of such data prior to its use.
  4. Specified Products. 
    1. Beta Releases.  From time to time, Company may grant the User access to “alpha”, “beta”, “technical preview” or other early-stage products (“Beta Releases”).  The User will comply with all terms related to any Beta Releases as posted or otherwise made available to the User.  Company may add or modify terms related to access or use of the Beta Releases at any time.  While Company may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, THE USER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT SERVICES, MAINTENANCE, STORAGE, OR SERVICE LEVEL OBLIGATIONS OF ANY KIND.  Company makes no promises that future versions of a Beta Release will be released.  The User’s use of the Beta Release will automatically terminate upon the release of a generally available version of the applicable Beta Release or upon notice of termination by Company.
    2. Introductory SaaS Service.  From time to time, Company may make available one or more offers for use of an introductory tier of the SaaS Service at no cost (“Introductory SaaS Service”).  The User will comply with all terms, including applicable service, account and data retention limits related to any Introductory SaaS Service, all as posted or otherwise made available to the User.  Company may add or modify terms related to access or use of the Introductory SaaS Service at any time.  While Company may provide limited support as further detailed in the documentation for the Introductory SaaS Service, THE USER AGREES THAT ANY INTRODUCTORY SAAS SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND.
    3. Termination.  Either Party may suspend or terminate access to or use of any Introductory SaaS Service or Beta Release at any time for any reason or no reason.  Notwithstanding anything to the contrary in the Agreement, after suspension or termination of the User’s access to or use of any Introductory SaaS Service or Beta Release for any reason (a) the User will not have any further right to access or use the applicable Introductory SaaS Service or Beta Release and (b) User data used in the applicable Introductory SaaS Service or Beta Release may be deleted or inaccessible.
  5. Disclaimers and Limits on Liability. 
    1. NO WARRANTY.  THE USER AGREES TO USE THE PRODUCT SOLELY AT THE USER’S OWN RISK.  THE PRODUCT IS PROVIDED “AS-IS” AND “AS-AVAILABLE” WITH ALL FAULTS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND ‒ INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
    2. NO ASSUMPTION OF RESPONSIBILITY.  COMPANY ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE PRODUCT OR INTERRUPTIONS IN SERVICE.
    3. LIMITS ON LIABILITY.  TO THE EXTENT NOT PROHIBITED BY LAW, YOU MAY RECOVER DIRECT DAMAGES FROM THE COMPANY ONLY UP TO THE AMOUNT YOU PAID FOR THE PRODUCT OR $1,000.00, WHICHEVER IS GREATER. IN NO EVENT WILL COMPANY, ITS EMPLOYEES, MEMBERS, AGENTS, OR THIRD-PARTY SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR DATA USE INCURRED BY THE USER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION.  IN NO EVENT WILL COMPANY’S TOTAL LIABILITY FOR ANY CLAIM ARISING HEREUNDER OR RELATING HERETO EXCEED THE SUM PAID BY USER TO COMPANY HEREUNDER.  The foregoing limitations will apply even if the above stated warranty fails of its essential purposes. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages so the above limitation may not apply.
    4. No Responsibility for Third-Party Content.  The Product may display, include, or make available content from third parties (“Third-Party Content”).  The User understands and agrees that Company is not responsible for the quality, accuracy, legality, or any other aspect of such Third-Party Content.  Company does not warrant or endorse and does not assume and will not have any liability or responsibility to the User or any other person for any Third-Party Content, or for any other materials, products, or services of third parties.
  6. Term; Termination.  This Agreement and the license granted hereby will be and remain in effect until this Agreement is terminated pursuant to its terms.  Company may terminate this Agreement (a) upon five days’ written notice, or (b) immediately should the User fail to comply with the terms and conditions of this Agreement.  In the event of termination, the User must remove the Product from any device or computer within the User’s possession or control and destroy and/or return any remaining Product to Company.
  7. Indemnification.  TheUser hereby agrees to indemnify, defend, and hold harmless Company and Company’s affiliates from and against any and all claims, loss, or liability, including reasonable attorneys’ fees and costs incurred, made by any third party due to or arising out of User’s breach this Agreement, User’s use or inability to use the Product, or User’s breach of any law or the rights of any third party.  Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to User’s indemnification.  User will not, in any event, settle any claim or matter without the written consent of Company.
  8. Government Rights.  The Product is commercial in nature, and is distributed and licensed to United States Government end users only with those rights granted to all other end users under the terms of this Agreement.
  9. Dispute Resolution.  This Agreement will in all respects be governed by and construed and interpreted in accordance with the laws of the State of Maryland without regard to choice of law rules.  Any claim or dispute associated with or arising out of this Agreement must be resolved exclusively by a state court located in Montgomery County, Maryland or, optionally, by the United States District Court for the District of Maryland – Greenbelt Division, where federal jurisdiction exists.  The Parties agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes.  The Parties waive any objection to the laying of venue for any suit, action, or proceeding in such courts.  The substantially prevailing Party in any action will be entitled to recover its costs and attorneys’ fees.  THE USER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.  IN NO EVENT WILL EITHER PARTY SEEK TO HAVE ANY CLAIM ARISING HEREUNDER OR RELATING HERETO TRIED TO A JURY.
  10. Notice.  Any notice, request, instruction, or other document to be given hereunder by any Party hereto to any other Party will be in writing and will be sufficiently given if delivered in person, sent by telecopy or telefax or electronic mail, sent by internationally recognized overnight courier service, or sent by registered or certified mail, postage prepaid to the Party’s last known address.
  11. Assignment; No Waiver.  The User may not assign any of its rights under this Agreement to any third party without the express written permission of Company.  No waiver of any provision of this Agreement or of a breach thereof will be effective unless expressed in a writing signed by the waiving Party.  The waiver by any Party of any of the provision of this Agreement or of a breach thereof will not operate or be construed as a waiver or breach of any other provision.
  12. Parties Bound.  This Agreement will be binding on and inure to the benefit of the Parties and their legal representatives, heirs, legatees, successors, and assignees.
  13. Severability; Survival.  If any provision of this Agreement or the application thereof will for any reason or to any extent be construed by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, and application of such provision to other circumstances, will remain in effect and be interpreted so as best to reasonably effect the Parties’ intent.  The Parties agree that all provisions of this Agreement that should, by their nature, survive termination of this Agreement shall survive termination of this Agreement.
  14. Additional Documents.  The Parties agree to execute such additional documents and take such additional actions as may be reasonably required in order to carry out the purpose and intent of this Agreement or to evidence anything contained herein.
  15. Integration.  This Agreement constitutes the Parties’ entire agreement with respect to the subject matter hereof and supersedes any and all prior written or oral understandings, negotiations and agreements with respect to the subject matter hereof.