REALTIME ROBOTICS, INC.
SOFTWARE END USER LICENSE AGREEMENT
This Agreement (this “Agreement”) is between Realtime Robotics, Inc. (“RTR”), and you or, if you represent a legal entity, the legal entity you represent (collectively, “You” or “Licensee”). If You are entering into this Agreement on behalf of a legal entity, you represent that you have the legal authority to bind that legal entity to this Agreement.
THIS AGREEMENT GOVERNS YOUR USE OF AND ACCESS TO THE RTR SYSTEM (AS DEFINED BELOW). PLEASE READ THIS AGREEMENT CAREFULLY AS IT INCLUDES IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS.
BY CLICKING “ACCEPT” AND/OR USING, RUNNING, OR ACCESSING THE SOFTWARE PROGRAMS REFERENCED IN AND/OR ACCOMPANYING THIS AGREEMENT, YOU ACCEPT AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS CONTAINED HEREIN. IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO PURCHASE THE PRODUCTS OR DOWNLOAD, INSTALL OR USE THE SOFTWARE.
“Documentation” means the documentation or manuals for the Software or Hardware, which are made generally available by RTR to its Software licensees, whether in written or electronic form.
“Hardware” means the RTR Processor hardware.
“Software” means the object code version of all Realtime Robotics proprietary computer software programs embedded on the Hardware or used to configure the Hardware and any updates thereto.
“System” refers to the Hardware, Software, and Documentation that is provided to the Licensee by RTR.
2. SOFTWARE LICENSE
2.1 License Grant. Subject to the terms and conditions of this Agreement, RTR grants to Licensee a non-exclusive, non-transferable, limited license to use and install updates as provide, the Software, solely for Licensee’s internal business purposes, and the related Documentation, subject to the following:
Licensee shall use, run, or operate the Software only on the Hardware.
Licensee shall use the Software only in accordance with its Documentation.
2.2 Licensee Limitations. Except as otherwise specifically permitted under Section 2.1, Licensee shall not use, copy, modify, create derivative works of, distribute, sell, assign, sublicense, lease, loan, rent, timeshare, provide access to, or transfer to a third party the Software, nor permit any third party to do any of the foregoing. Licensee may not (i) derive or attempt to derive the source code of all or any portion of the Software provided to Licensee in object code form, (ii) permit any third party to derive or attempt to derive such source code, (iii) reverse engineer, decompile, disassemble, or translate the Software or the System or any part thereof; or (iv) perform or disclose benchmarks or other comparisons of the Software without RTR’s prior written consent. The Software may be used only as incorporated in or configuration of the System.
2.3 No Implied License. Licensee acknowledges and agrees that this Agreement in no way shall be construed to provide to Licensee, or any third party, any express or implied license to use, copy or otherwise exploit the Software or any portion thereof (including any intellectual property embodied therein) except as expressly set forth in Section 2.1.
Except for the license granted hereunder, all rights, title and interests, including without limitation all worldwide patent, copyright, trademark, trade secret and any other rights in and to the Software, System and the Documentation are retained by RTR and its licensors. Licensee agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of RTR or its licensors in and to such intellectual property rights.
4.1 EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED BY RTR TO LICENSEE UNDER THE GENERAL TERMS AND CONDITIONS OF SALE PURSUANT TO WHICH LICENSEE PURCHASED THE SYSTEM (THE “TERMS”) IF ANY, TO THE FULLEST EXTENT ALLOWED BY LAW, THE SOFTWARE IS PROVIDED “AS IS” AND RTR HEREBY DISCLAIMS AND MAKES NO EXPRESS OR IMPLIED WARRANTY UNDER THIS AGREEMENT WITH RESPECT TO ANY OF THE SOFTWARE, SYSTEMS, OR DOCUMENTATION, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THIRD-PARTY PRODUCTS, SOFTWARE OR SERVICES; (3) RELATING TO THE PERFORMANCE OF ANY SYSTEM OR SOFTWARE; OR (4) REGARDING THE RESULTS TO BE OBTAINED FROM THE SYSTEM OR SOFTWARE OR THE RESULTS OF ANY RECOMMENDATION BY RTR. Licensee shall be solely responsible for, and RTR shall have no obligation to honor, any promises or warranties that Licensee may provide to its customers or any third party with respect to any results provided to or generated by such parties as the result of the implementation of the Software or the System. Licensee shall indemnify, defend and hold harmless RTR from and against any and all losses, damages, liabilities, and expenses, including reasonable attorney’s fees (“Losses”), arising out of, related to or in connection with any such promises or warranties, whether express, implied, statutory or otherwise, and to pay any settlement or damages awarded a third party as a result of any action based on such promise or warranty.
4.2 Ultrahazardous Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use in any environment in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage, including, without limitation, in the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems or in the on-line control of equipment in any hazardous environment requiring fail-safe performance (“Ultrahazardous Activities”). RTR specifically disclaims any express or implied warranty of fitness for Ultrahazardous Activities. Licensee represents and warrants to RTR that Licensee will not use or otherwise provide the Software for such purposes. Licensee agrees and undertakes to indemnify, defend and hold harmless RTR from and against any and all Losses arising out of, related to or in connection with any such Ultrahazardous Activities.
5. INTELLECTUAL PROPERTY INFRINGEMENT
5.1 By RTR. Except as set forth below, RTR will defend at its expense any action brought against you to the extent that it is based on a claim that the Software, when properly used within the scope of this Agreement, infringes a United States patent, copyright or trade secret of any third party, and RTR will pay any costs, damages and reasonable attorneys’ fees finally awarded against you in, or payable in settlement of, such action which are directly attributable to such claim; provided that (i) RTR is notified in writing promptly of the claim, (ii) you permit RTR to assume sole control of the defense, compromise or settlement of said claim, and (iii) you provide to RTR reasonable cooperation, information and assistance in connection therewith. If a final injunction is obtained against your use of the Software by reason of infringement, or if in RTR’s opinion the Software is likely to become the subject of a successful claim of such infringement, RTR may, at its option, either procure for you the right to continue using the Software or replace or modify the same so that it becomes non-infringing (so long as the functionality is essentially unchanged). In the event that neither of the foregoing is reasonably available, RTR shall accept the return of the Software, and RTR, or RTR ‘s reseller, shall grant to you a credit equal to (x) in the case of subscriptions, the amounts paid by You for any period of time during which You are unable to use the Software, and (y) in the case of perpetual licenses, the fees paid by you for the Software, less depreciation calculated on a straight-line basis over a five-year period.
5.2 By Licensee. RTR shall have no liability to You, and You shall, on the terms set forth above, defend and indemnify RTR against, claims of infringement based on (i) the use or combination of the Software with any other software or hardware not provided by RTR, if such infringement would not have occurred but for such use or combination, (ii) any modification of the Software by anyone other than RTR, (iii) the use of other than the current version of the Software, if such version was made available by RTR for no additional fees with notice that such version was being provided in order to avoid an alleged or potential infringement, (iv) compliance with Your designs or instructions, or (v) claims of infringement of patents, copyrights or trade secrets of You or Your affiliates.
5.3 Entire Liability. THE FOREGOING STATES THE ENTIRE LIABILITY OF RTR WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
6. LIMITATION ON LIABILITY.
6.1 RTR WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SYSTEM OR SOFTWARE PROVIDED HEREUNDER. RTR WILL HAVE NO LIABILITY FOR THE FOLLOWING: (1) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (2) BUSINESS INTERRUPTION OR DOWNTIME; OR (3) SYSTEMS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE.
6.2 THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR RTR’S SALE OF SYSTEM, SOFTWARE OR SERVICES TO LICENSEE, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
7.1 “Confidential Information” means all confidential or proprietary information that is made available by RTR to Licensee, including, without limitation, information about RTR’s business, finances, operations, customers, suppliers, employees, products, plans or technology, if (i) such information is in writing and marked as proprietary or confidential, or (ii) such information is disclosed orally or visually and identified as proprietary or confidential, at or prior to disclosure, or (iii) it would be apparent to a reasonable person, familiar with RTR and the industry in which it operates, that such information is of a proprietary or confidential nature. The Software and Documentation shall be deemed to embody Confidential Information of RTR, whether or not so labeled.
7.2 Treatment of Confidential Information. Licensee shall hold all Confidential Information of RTR in confidence and shall protect such Confidential Information from unauthorized use, publication or dissemination with the same degree of care normally used to protect its own confidential information, but in no event less than a reasonable degree of care. Licensee shall not disclose any Confidential Information of RTR to any person outside of Licensee’s organization (other than Licensee’s counsel, accountants or financial advisors, and only if the same are bound to protect the confidentiality thereof). You shall disclose Confidential Information of RTR only to persons within Licensee’s organization who have a need to know in the course of performing their duties and who are bound to protect the confidentiality of such Confidential Information. Licensee shall use Confidential Information of RTR only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of any other party.
7.3 Release from Restrictions. The obligations of Licensee specified in Section 6.2 shall not apply with respect to any Confidential Information of RTR to the extent that such: (i) is or becomes generally known to the public through no wrongful act on the part of You; (ii) is in Licensee’s possession at the time of disclosure by RTR otherwise than as a result of a breach of any legal obligation by Licensee or any other party from whom You has obtained such information; (iii) becomes known to Licensee through disclosure by sources other than RTR having the legal right to possess and disclose such Confidential Information; (iv) is developed independently by Licensee without use of or reference to any Confidential Information; (v) is the subject of written permission to disclose provided by the RTR; or (vi) is required to be disclosed by Licensee in response to a valid court order or to comply with applicable laws or governmental regulations, provided that Licensee provides to RTR prior written notice of such disclosure and a reasonable opportunity to contest such disclosure and thereafter cooperates with RTR to minimize the extent and scope of such disclosure
8. TERM; TERMINATION
Should Licensee materially breach any of its obligations hereunder, this Agreement shall automatically terminate. Upon termination of this Agreement, the license granted herein shall immediately terminate. Termination of this Agreement shall not relieve Licensee from paying all fees accruing prior to termination. Section 1, 3, 4, 6, 7, 8 and 9 shall survive the termination of this Agreement.
9.1 Export Control. The terms “software” and “technology” used in this section are defined in the United States Export Administration Regulations (“EAR”). The parties acknowledge that certain software and/or technology provided under this Agreement may be subject to the EAR, and that certain U.S. sanctions laws and regulations (collectively, with the EAR, “Trade Controls”) may also apply. Licensee agrees that it will not, either directly or indirectly, export, reexport, transfer, retransfer, distribute, use, or otherwise transmit such software or technology provided by the other party under this Agreement except in compliance with Trade Controls. Licensee shall comply with the Foreign Corrupt Practices Act, as amended, and the rules and regulations thereunder.
9.2 Miscellaneous. This Agreement (including the license granted herein) may not be assigned or in any way transferred without the prior written consent of RTR. This Agreement shall be construed in accordance with the substantive laws of the Commonwealth of Massachusetts, U.S.A., excluding both its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods. The original of this Agreement has been written in English. If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. This Agreement may not be modified except by a written agreement signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
9.3 Restricted Rights. Any use of the Software by the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is RTR, with the address set forth above.