IMPORTANT - USE OF THE SOFTWARE PRODUCT (AS DEFINED BELOW) IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THIS SOFTWARE PRODUCT.

 

This license is a legal "Agreement" concerning the use of the Software Product between you (“Licensee”) and Liquid Robotics, Inc. ("Licensor"), having its principal place of business at 1329 Moffett Park Dr., Sunnyvale, CA 94089. USE, DOWNLOAD, OR INSTALLATION OF THE SOFTWARE PRODUCT OR SELECTING AN “ACCEPT” BUTTON ASSOCIATED WITH THIS AGREEMENT INDICATES THAT LICENSEE COMPLETELY AND UNCONDITIONALLY AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS. If Licensee does not agree to these terms and conditions, Licensee may not use, download or install the Software Product, should promptly contact a sales representative at Licensor, and, if supplied with a copy of the Software Product, return the Software Product to Licensor.

1.1 “Confidential Information” means any non-public technical or business information of Licensor (or its licensors), including without limitation, any information, relating to Licensor’s techniques, algorithms, software, hardware, firmware, know-how, current and future products, services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information, the terms and conditions of this Agreement, and any other information of Licensor (or its licensors) that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally and is identified as “Confidential” at the time of disclosure.

1.2 “Limited Purpose” means control and view the status of Licensor’s Wave Glider vehicle in accordance with and for the purposes described in the Documentation.

1.3 “Number of Users” means the number of individuals authorized to access and use the Software Product through the assignment to each individual of authorization information (e.g., a single user name and password allocation). For sake of clarity, Users means individuals authorized to access and use the Software Product regardless of whether or not the individuals are using the Software Product at any given time, as distinct from concurrent usage. The number of individuals so authorized will be specified in an Order. In the absence of the specification of the number of individuals in such an Order, the number of individuals shall be limited to 1 individual.

1.4 “Software Product” means (a) the version of Licensor’s software in machine readable object code form, including without limitation firmware, with or for which this Agreement is provided, whether the software is provided by download or storage media (e.g., CD), included in hardware or accessible by Internet or other network connection; (b) all Licensor data provided with or accessible through the Licensor’s software; (c) all copies of the Licensor’s software permitted by this Agreement; (d) all related manuals, user documentation, Service Level Agreement, and other materials with or for which this Agreement is provided (“Documentation”); and (e) any fixes, add-ons, patches, upgrades and updates to the foregoing provided to Licensee and not covered by a separate written agreement between Licensee and Licensor or the Order. The term “Software Product” does not include the source code of any computer program.

1.5 “Order” means a task or purchase order, with Licensee, that is associated with the Software Product and is accepted or acceptable to Licensor.

2.     LICENSE GRANT.

Subject to the terms and conditions of this Agreement (including without limitation Section 3) and subject to any express Software Product license terms or conditions in an Order, Licensor grants Licensee, and Licensee hereby accepts, a personal, non-transferable, non-assignable, non-exclusive copyright license to use, by no more than the Number of Users, the Software Product solely for the Limited Purpose on only a single computer or network device and, if Licensee is supplied with a copy of the Software Product, to use and install only the copy of the Software Product supplied. Notwithstanding the foregoing, if Licensee is supplied with a copy of the Software Product, Licensee may make one (1) additional copy of the Software Product solely for archival, back-up and disaster recovery purposes and may only use that copy if the original installed copy of the Software Product is no longer used. If the Software Product is provided with or includes third party software or materials, such third party software or materials may be subject to other terms and conditions and are not governed by this Agreement.

3.     LICENSEE RESTRICTIONS; OBLIGATIONS.

3.1 Reservation of Rights; Restrictions.

All rights not expressly granted to Licensee by this Agreement are hereby expressly reserved by Licensor and its licensors. For greater certainty, Licensee shall not, nor will Licensee allow anyone else to, directly or indirectly: (i) sell, rent, lease, sublicense, distribute or otherwise transfer the Software Product or any portion thereof; (ii) except as expressly permitted in this Agreement, use, copy, display, or perform the Software Product, or any portion thereof; (iii) connect to any Licensor server or any server software of the Software Product except using a device or authorization information licensed or purchased from, or authorized by, Licensor; (iv) reverse compile, disassemble or otherwise reverse engineer the Software Product or any portion thereof, except and only to the limited extent expressly permitted by applicable law notwithstanding this limitation; (v) modify, translate or create derivative works based on the Software Product or any portion thereof; (vi) unless expressly permitted in writing by Licensor, make the Software Product available in any manner to any third party for use in the third party’s business operations or to provide hosting, service bureau, time-sharing or similar services to a third party; (vii) unless expressly permitted in writing by Licensor, use the Software Product for any commercial purpose, or (viii) disable or circumvent any access control or related device, process or procedure established with respect to the Software Product. Licensee is responsible for all use of the Software Product and for compliance with this Agreement; any breach by Licensee or any user acting on Licensee’s behalf shall be deemed to have been made by Licensee.

3.2 Obligations.

Licensee agrees that it will not use the Software Product for any purpose that is illegal or in any way that might result in any loss of property or information. Licensee agrees to use the Software Product strictly in accordance with the Documentation. Licensee agrees that it shall have the sole responsibility for protecting its data used in connection with the Software Product. If Licensor provides a fix, upgrade or update of the Software Product, Licensee agrees to immediately install and/or use such fix, upgrade or update and discontinue use of the previous version of the Software Product.

3.3 Proprietary Notices.

Licensee agrees not to remove from view any copyright, trademark, or other proprietary notice, mark, or legend appearing on any of the Software Product or on output generated by the Software Product and agrees to reproduce and include the same on each copy of the Software Product permitted by this Agreement.

3.4 Ownership.

All right, title and interest in and to the Software Product, including without limitation all patents, copyrights, trade secrets, trademarks and other intellectual property right therein, are and shall remain with Licensor or its suppliers, or both. This Agreement does not transfer title or any ownership right or interest in the Software Product to Licensee. The Software Product is licensed for use, not sold. Licensee acknowledges and agrees that the Software Product and its structure and organization contain, embody and are based on patented or patentable inventions, trade secrets, copyrights and/or other intellectual property rights owned by Licensor and its licensors. Title to any intellectual property rights in the Software Product shall not pass to Licensee as a result of this Agreement or of Licensee’s obtaining or using the Software Product, and shall continue to be owned by Licensor and its licensors. Nothing contained in this Agreement shall be construed to confer any license or right with respect to any patent, trademark, trade name, brand name, or the corporate name of Licensor, or of any of Licensor’s suppliers.

4.     PAYMENTS.

4.1 Fees.

In consideration of the rights provided by Licensor hereunder, Licensee hereby agrees to pay Licensor the fees set forth in the Order. Unless otherwise expressly provided in such Order, the fees shall be due and payable on the date of such Order.

4.2 Taxes.

The fees set forth in this Agreement are exclusive of, and Licensee will pay, all taxes, duties and other charges or fees imposed by governmental authorities arising out of this Agreement or the use of the Software Product by Licensee. In the event that Licensor is required to pay any tax or duty (other than taxes based on Licensor’s net income), Licensee will reimburse Licensor for any and all such payments. In addition, if any of the Software Product will be provided to points outside of the United States, all export duties, import duties, tariffs, value added taxes, licenses and other similar taxes, duties and fees will be paid by Licensee.

5.     TERMINATION.

This Agreement and the license herein
are effective until terminated. Unless specified to the contrary in the Order or Documentation, this Agreement shall terminate 365 calendar days from the date of the Order. The foregoing notwithstanding, this Agreement will terminate immediately if Licensee fails to comply with any terms or conditions of this Agreement. Upon termination of this Agreement for any reason, all licenses granted under this Agreement will terminate, Licensee shall cease using the Software Product and, if applicable, return the Software Product, and Licensee shall pay within thirty (30) days all amounts which have accrued prior to the end of this Agreement, as well as all sums remaining unpaid for the Software Product received under this Agreement. Any provisions of this Agreement which, by their terms, contemplate continuing effectiveness shall survive the termination of this Agreement including, without limitation, Sections 1 and 3-9.

6.     DISCLAIMER.

THE SOFTWARE PRODUCT IS PROVIDED “AS IS,” WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. LICENSOR DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS LICENSEE MAY OBTAIN BY USING THE SOFTWARE PRODUCT AND ASSOCIATED HARDWARE, THAT ALL SOFTWARE PRODUCT AND ASSOCIATED HARDWARE DEFECTS WILL BE CORRECTED, THAT THE SOFTWARE PRODUCT AND ASSOCIATED HARDWARE WILL OPERATE ERROR FREE, FREE OF ANY DEFECTS OR IN AN UNINTERRUPTED MANNER, OR THAT THE SOFTWARE PRODUCT AND ASSOCIATED HARDWARE WILL OPERATE OR BE COMPATIBLE WITH ANY THIRD PARTY SOFTWARE OR HARDWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO LICENSEE IN LICENSEE’S JURISDICTION, LICENSOR AND ITS SUPPLIERS MAKE NO AND SPECIFICALLY DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS, EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO THE SOFTWARE PRODUCT INCLUDING WITHOUT LIMITATION FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, INTEGRATION, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, SATISFACTORY QUALITY, AND NON-MISAPPROPRIATION OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING. EXCEPT AS EXPRESSLY PROVIDED IN A TASK OR PURCHASE ORDER, WITH LICENSEE, THAT IS ASSOCIATED WITH THE SOFTWARE PRODUCT AND IS ACCEPTED OR ACCEPTABLE TO LICENSOR OR EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO LICENSEE IN LICENSEE’S JURISDICTION, LICENSOR AND ITS SUPPLIERS MAKE NO AND SPECIFICALLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO HARDWARE WITH WHICH THE SOFTWARE PRODUCT IS ASSOCIATED INCLUDING WITHOUT LIMITATION FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, INTEGRATION, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, SATISFACTORY QUALITY, AND NON-MISAPPROPRIATION OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING. Licensee represents that Licensee has the requisite expertise to evaluate the suitability of the Software Product and associated hardware and that Licensee has undertaken its own investigation of the suitability of the Software Product and associated hardware. Licensee represents that Licensee has relied upon its own skill and judgment in selecting the Software Product and associated hardware. Licensee assumes full responsibility for the selection of the Software Product and hardware and for the use and results obtained from the Software Product and hardware.

7.     EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY.

LICENSOR'S TOTAL AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, WITH THE SOFTWARE PRODUCT, AND WITH THE ASSOCIATED HARDWARE WILL BE LIMITED TO THE AMOUNT OF ACTUAL DIRECT DAMAGES UP TO THE GREATER OF U.S. $50 OR THE AMOUNT PAID, IF ANY, FOR THE SOFTWARE PRODUCT BY LICENSEE UNDER THIS AGREEMENT THAT CAUSED THE DAMAGES. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING FROM LOST REVENUE, BUSINESS, PROFITS, SAVINGS, DATA, USE OF EQUIPMENT OR OPERATION OF EQUIPMENT, OR ARISING FROM DELAYS IN DELIVERY OR REPAIR OF EQUIPMENT OR DAMAGE TO ANY DATA OR OTHER PROPERTY BELONGING TO LICENSEE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY, ALL REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF A LICENSOR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. Nothing contained in this Agreement limits Licensor’s liability to Licensee in the event of death or personal injury resulting from Licensor's negligence or for the tort of deceit (fraud). Licensor is acting on behalf of its suppliers solely for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. The foregoing limitations will apply even if the above stated warranty or any remedy fails of its essential purpose.

8.     CONFIDENTIALITY.

Unless covered by a separate, enforceable and applicable written agreement between Licensee and Licensor regarding Confidential Information, Licensee will take all reasonable measures to maintain the confidentiality of Licensor’s Confidential Information, but in no event will Licensee employ any measures that are less protective of Licensor’s Confidential Information than the measures Licensee uses to protect Licensee’s own confidential information. Licensee will limit the disclosure of Licensor’s Confidential Information to only Licensee’s employees with a bona fide need to access such Confidential Information in order to exercise Licensee’s rights and obligations under this Agreement; provided that all such employees are bound by a written non-disclosure agreement that contains restrictions at least as protective as those set forth herein. Licensee agrees that Licensor will suffer irreparable harm in the event that Licensee breaches any obligations under this Section and that monetary damages will be inadequate to compensate Licensor for such breach. In the event of a breach or threatened breach of any of the provisions of this Section, Licensor, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity and without the necessity of posting bond or proving that it has no adequate remedy at law, shall be entitled to seek a temporary restraining order, preliminary injunction and/or permanent injunction in order to prevent or to restrain any such breach.

9.     MISCELLANEOUS.

9.1 Severability.

If any term or provision of this Agreement should be declared unlawful, void or unenforceable, the remaining terms and provisions of this Agreement shall be unimpaired and remain in full force and effect, and the unlawful, void or unenforceable term or provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law.

9.2 Entire Agreement.

This Agreement constitutes the entire agreement and understanding between Licensor and Licensee relating to the subject matter of this Agreement and supersedes any and all previous and contemporaneous communications, proposals, warranties, representations or agreements, whether written or oral, with respect to the subject matter of this Agreement. Except for any term or condition in an Order, any term or condition in any purchase quote, order, acknowledgment, or any other communications by or between the parties that is in addition to or inconsistent with the terms and conditions of this Agreement is hereby expressly rejected, and Licensor’s acceptance of any offer or order of Licensee is hereby expressly made in reliance on Licensee’s assent to all of the terms and conditions of this Agreement.

9.3 Nonassignability.

Licensee shall not assign this Agreement, assign any interest in this Agreement, or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without Licensor's prior express written approval, which approval shall not be unreasonably withheld. Any such purported assignment or delegation by Licensee without Licensor's prior written consent will be null and void and of no force or effect, unless otherwise expressly consented to by Licensor at its sole and absolute discretion.

9.4 Modification.

This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or part, except by a written agreement signed by Licensee and Licensor.

9.5 Governing Law.

This Agreement and the rights, duties and obligations of the parties hereto are to be governed by, construed and enforced according to the laws of the State of California and controlling U.S. federal law, without regard to any choice-of-law rules or principles. Any dispute arising out of or related to this Agreement shall be resolved only in the state or federal courts having jurisdiction in Santa Clara County, California, U.S.A., and Licensee hereby submits to the exclusive jurisdiction of such courts. Licensee irrevocably agrees to waive any objection to the venue of any such suit or proceeding in Santa Clara County, California, or to in personam jurisdiction, provided that service is effective. Licensee expressly agrees with Licensor that this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

9.6 Force Majeure.

Licensor shall not be responsible for any delay or failure to perform obligations specified in this Agreement due to causes beyond Licensor's control.

9.7 Compliance with Law; Export Controls.

Licensee will comply with all applicable laws, regulations, treaties or other types of government authority (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) in connection with the Software Product. Without limiting the foregoing, the Software Product and any related technical information or materials may be subject to export controls under U.S. or foreign export laws and/or regulations. Licensee will not export, re-export, divert, ship or disclose, directly or indirectly, the Software Product and any related technical information or materials without complying with all requirements including without limitation obtaining the prior approval of the U.S. Department of Commerce or other applicable authority. If the Software Product is identified as export controlled under U.S. or foreign export laws and/or regulations, Licensee represents and warrants that Licensee is not a citizen, or otherwise located within, an embargoed nation and that Licensee is not otherwise prohibited under the U.S. or foreign export laws or regulations from receiving the Software Product.

9.8 Waiver.

Waiver or failure by Licensor to enforce any rights or remedies under this Agreement will not be construed as a waiver of such rights or remedies, and a waiver by Licensor of a default hereunder in one or more instances will not be construed as constituting a continuing waiver or as a waiver of any other rights or remedies under this Agreement. Licensor will not be deemed to have waived any rights or remedies under this Agreement unless such waiver is in writing and signed by a duly authorized representative of Licensor.

9.9 Limitation of Actions.

No action or proceeding against Licensor will be commenced by Licensee more than one (1) year after delivery of the Software Product, unless otherwise provided by local law without the possibility of contractual waiver or limitation. No action or proceeding may be brought unless Licensor has first been given commercially reasonable notice, a full written explanation of all pertinent details (including copies of all materials), and a good faith opportunity to resolve the matter.

9.10 Indemnity.

Licensee acknowledges that Licensor has no knowledge of, or control over, the actual uses of the Software Product made by Licensee. Licensee agrees to defend, indemnify and hold Licensor harmless from and against any and all losses, liabilities, damages, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of or related to any suit, claim or proceeding relating to the use of the Software Product, including without limitation any loss related to Licensee’s failure to conform to the requirements of Section 9.7.

9.11 Government Restricted Rights.

If Licensee is the U.S. federal government or another government, or is obtaining the Software Product for or on behalf of the U.S. federal government or another government, Licensee hereby agrees that the Software Product qualify as a "commercial item", “commercial computer software documentation” and/or "commercial computer software" as defined in the applicable acquisition regulation(s). Any use, modification, reproduction, release, performance, display or disclosure of the Software Product by the U.S. federal government or another government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms and conditions of this Agreement.

9.12 Compliance with License.

Upon ten (10) days written notice, Licensor may audit Licensee’s use of the Software Product. License agrees to cooperate with Licensor’s audit and provide reasonable assistance and access to information. Licensee agrees to pay within thirty (30) days of written notification any underpaid fees. If Licensee does not pay, Licensor can terminate this Agreement and Licensee’s use of the Software Product.

9.13 Notices.

All notices, requests, consents, and other communications hereunder shall be in writing and shall be deemed effectively given and received upon delivery in person, or one (1) business day after delivery to a nationally recognized overnight courier service if sent by overnight or priority delivery, or by facsimile transmission with acknowledgment of transmission receipt if sent during the normal business hours of the receiving party, or five (5) business days after deposit via certified or registered U.S. mail, return receipt requested.