SDK EVALUATION LICENSE AGREEMENT
PLEASE READ THIS SDK EVALUATION LICENSE AGREEMENT ("AGREEMENT")
BEFORE DOWNLOADING, INSTALLING OR USING THE AUGUMENTA INTERACTION PLATFORM SDK
(THE "SOFTWARE"):
By selecting the "I Accept" button, or otherwise
downloading, installing or using the Software, you acknowledge that you, on
your own behalf as an individual and on behalf of your employer or another
legal entity ("Licensee"), have read and understood and agree to
comply with the terms and conditions of this Agreement, and are entering into a
binding legal agreement with Augumenta Ltd. ("Augumenta"). You
represent and warrant that if you are entering into this Agreement on behalf of
your employer or other legal entity, that you have full authority to bind said
employer or other legal entity to this Agreement. If you do not
agree to comply with and be bound by this Agreement or do not have authority to
bind your employer or other legal entity, please do not accept this Agreement
or use the Software. You hereby waive any applicable rights or
requirements under any laws or regulations in any jurisdiction which require an
original (non-electronic) signature or delivery or retention of non-electronic
records, to the extent not prohibited under applicable law. You
assume all responsibility for the selection of the Software to achieve your
intended results and for the installation, use and results obtained from the
Software.
Background:
A.
Augumenta develops and licenses proprietary hand
gesture control and augmented reality software for use on wearable devices, and
related documentation.
B.
Augumenta is prepared to disclose to Licensee the
Software, the associated technical documentation (the "Documentation"),
or the associated sample codes (the "Samples"), or all of them on the
following terms and conditions. Together the Software, the Documentation, and
the Samples shall be referred to as "Materials".
C.
The Materials are supplied to Licensee for the
sole purpose of internally testing and evaluating the Materials as well as
incorporating the Software and the Samples into applications developed by
Licensee ("Proof-Of-Concept Applications") for limited evaluation and
demonstration use only (the "Purpose").
NOW IT IS HEREBY AGREED AS FOLLOWS:
1.
Registration
When registering with Augumenta for this
Agreement, Licensee acknowledges and agrees that it will i) provide true,
accurate, current, and complete information as requested by the registration form
and ii) maintain and update this registration information to keep it true,
accurate, current, and complete. Augumenta reserves the right to refuse
entering into this Agreement, or terminate the Agreement with immediate effect,
in its sole discretion, if Licensee provides information that is false,
inaccurate, not current, or incomplete.
2.
Use and License of Materials
2.1
Subject to the terms and conditions of this
Agreement, Augumenta hereby grants to Licensee a free of charge, non-exclusive,
non-sublicensable, non-transferrable, revocable, limited license to use the
Materials solely for the purposes of the Purpose and for the Term set forth in
Section 4.1.
2.2
All copies of and rights to the Materials
provided by Augumenta, including all intellectual property rights included in
patents, inventions, copyrights, database rights, design rights (whether
registered or not), trademarks, trade names, logos, trade secrets, knowhow and
all rights to sue for passing off or unfair competition and all applications
for the same and all rights of similar nature existing anywhere in the world ("Intellectual
Property Rights") therein, are and shall remain the exclusive property of
Augumenta.
2.3
Licensee shall not distribute, deploy, sell,
supply, modify, adapt, amend, merge, or otherwise alter, the Materials, in
whole or in part. Licensee shall not reverse engineer, decompile, disassemble
or otherwise attempt to derive source code, techniques, processes, algorithms, know-how or other information from Materials
or permit or induce the foregoing. Licensee shall not use the Materials to
develop any software or product which is the same as or similar to or competes
with the Materials.
2.4
During the Term of this Agreement the Licensee
may demonstrate Proof-Of-Consept Applications to third parties for the purpose
of evaluating the possibility to establish a business relationship with such a party.
All demonstrations shall happen in compliance with this Agreement, including
the confidentiality obligations of Section 11. Licensee agrees to follow
Augumenta's PR guidance given from time to time when demonstrating
Proof-Of-Concept Applications to 3rd parties.
2.5
Licensee agrees to use reasonable effort to
evaluate and test the Materials and to provide free of charge the Evaluation
Results to Augumenta. "Evaluation Results" means product comparisons,
performance testing results, requirements, functional/performance requests,
benchmarks, ideas, critiques, and recommendations relating to the Materials. After
the expiration of the Term set forth in Section 4.1 below all rights to the
Evaluation Results shall be assigned to Augumenta and Augumenta shall have a
right to exploit the Evaluation Results without any restrictions. If the
Licensee signs a commercial agreement with Augumenta concerning the Materials,
the Licensee shall have a right to use the Evaluation Results according to that
agreement.
2.7
Licensee shall reproduce and preserve, and not
obscure, any and all notices and markings pertaining to Augumenta's
Intellectual Property Rights and Augumenta Trademarks contained in copies of the
Materials.
2.8
To the extent permitted by the law, all
Materials are supplied as is, including any faults. To the maximum extent
permitted by the law, Augumenta excludes all warranties, conditions or other
terms that may be implied into this Agreement whether by law, statute or
otherwise. Augumenta gives no condition, warranty or other term whatsoever,
either express or implied including, without limitation, any condition,
warranty or other term as to the condition of any code, or as to
merchantability, satisfactory quality, fitness for a particular purpose,
non-infringement, or use of reasonable care and skill. To the extent permitted
under applicable law, Augumenta shall not be liable in contract, tort or
otherwise for any loss or damage, howsoever arising in connection with the
Materials or this Agreement. Augumenta shall not be liable for any indirect,
special, or consequential damages, whether such damages or losses are known,
foreseen, foreseeable or unforeseen.
2.9
Except for all rights and license granted hereunder,
nothing contained in this Agreement shall be construed to grant Licensee any
right, title or interest in or to the Materials and the Evaluation Results. Augumenta
expressly reserves all right, title and interest in and to the Materials and
the Evaluation Results.
2.10 Augumenta reserves the right to include a security mechanism within
the Software to control access to and/or use of the Software in order to
enforce the license terms granted herein. Licensee agrees not to interfere,
disrupt or work around said security mechanisms.
3.
Support Services
3.1 Augumenta is not required under this Agreement to provide any
support or maintenance services. Such services may be purchased
separately under Augumenta's then-current standard support services
agreement.
3.2
Licensee agrees that Augumenta may collect and
use technical information and data gathered as part of the support and
maintenance services provided to Licensee, if any, related to the Materials.
Augumenta may use this information solely to improve its products and services
or to provide customized services or technologies to Licensee and will not
disclose this information in a form that personally identifies Licensee,
without Licensee's consent.
4.
Term and Termination
4.1 This Agreement shall commence on the date the Licensee accepts this
Agreement or downloads, installs, loads or otherwise uses the Materials ("Effective
Date") and unless terminated earlier in accordance with this Section, shall
continue until either the Purpose is complete or for a period of three (3) calendar
months from the Effective Date whichever shall occur sooner (the "Term").
Augumenta may at any time by 30 days prior written notice to Licensee withdraw
Licensee's rights under Section 2 whereupon it may require Licensee immediately
upon receipt of such notice to cease use of the Materials. In the event of
expiry of termination of this Agreement howsoever caused, Licensee shall:
(a)
return the Materials to Augumenta, or (as
Augumenta may direct) ensure to the satisfaction of Augumenta that all copies
of the Materials and other Proprietary Information are destroyed and all
software erased from all media, such of the original versions of the Materials
and other Proprietary Information that are in its possession;
(b)
destroy all programs and materials prepared by
or for it or in its possession which incorporate any part or element of the
Materials and other Proprietary Information (whether or not included in Proof-Of-Concept
Applications); and
(c)
within five (5) business days of any request
from Augumenta, provide written certification of compliance with Sections 4.1
(a) and 4.1 (b), above.
If the Licensee signs a commercial agreement with Augumenta
concerning the Materials, the Licensee shall have a right to use also Materials
included in the Proof-Of-Concept Applications according to that agreement.
4.2
Each party shall have the right to terminate
this Agreement by notice with immediate effect, if other party commits a breach
of the Agreement or if the other party that exists on the date of this
Agreement changes in any material manner that adversely affects the rights of
the terminating party, including the acquisition of ownership or control by a competitor
of the other party. In such event, the terminating party shall co-operate with
the other party to conduct an orderly termination of this Agreement.
5.
Breach and Liquidated Damages
The provisions of this Agreement are
necessary for the protection of the business and goodwill of the parties and
are considered by the parties to be reasonable for such purpose. Licensee
agrees that any breach of this Agreement may cause Augumenta substantial and
irreparable damages and, therefore, in the event of any such breach, in
addition to other remedies which may be available, Augumenta shall have the
right to seek specific performance and other injunctive and equitable relief
available in Licensee's domicile. If the Licensee is in breach of this
Agreement the Licensee shall be liable for all damages incurred to Augumenta,
including but not limited to indirect, special, or consequential damages.
6.
Indemnication
To the maximum extent permitted by law, Licensee
agrees to indemnify, defend and hold harmless Augumenta, its officers,
directors, employees, agents, shareholders, and licensors from and against any
losses, liabilities, damages, fines and expenses (including attorneys' fees and
costs) arising out of or relating to any third party claims that arise from or
are in connection with: (i) Licensee's violation of any terms of this
Agreement; (ii) Licensee's use of the Materials; and/or iii) Proof-of-Concept
Applications developed by Licensee. Augumenta reserves the right, at its
own expense, to assume the exclusive defense and control of any matter subject
to indemnification by Licensee.
7.
Use with Open Source Software
Notwithstanding any other provision of this
Agreement, Licensee shall at no cost to Augumenta hold harmless, defend and
indemnify Augumenta from any and all claims, liabilities, or obligations
arising from or relating to the porting, developing or distributing of Software
on or with the Linux OS platform or other software licensed under
"copyleft" licensing terms, including without limitation claims in
the nature of mandating disclosure of Software source code or similar license
terms for so-called "open source" software ("Open Source
License Terms"). Licensee acknowledges and agrees that under no
circumstances shall Augumenta be required to disclose Software source code or
be bound by Open Source License Terms.
8.
Updates
Augumenta has no obligation to make available
to Licensee any bug fixes, updates, upgrades, modifications, enhancements,
supplements and new releases or versions of or to the Materials ("Updates").
However, if Updates are made available to Licensee by Augumenta, the terms of
this Agreement will govern such Updates. Licensee agrees that the form and
nature of the Materials may change without prior notice and that future
versions of the Materials may be incompatible with current version.
9.
Entire Agreement
This Agreement constitutes the entire
agreement and understanding between the parties with respect to its subject
matter and replaces and excludes any previous agreements entered into, and all
undertakings, promises or representations made, given or implied from any
contact between the parties prior to this Agreement regarding this Agreement's
subject matter. A party shall have no remedy for any untrue statement made by
the other party which it relied upon in entering into this Agreement except the
remedy for breach of this Agreement. This Agreement, including this Section 9,
cannot be changed except by written agreement between the parties.
10.
Assignment
10.1 Licensee
may not assign or otherwise transfer its rights or obligations under this
Agreement without Augumenta's prior written consent.
10.2 Augumenta may assign or otherwise transfer its rights and
obligations under this agreement to an Affiliate of Augumenta without the
consent of Licensee and without any further conditions imposed by Licensee.
Augumenta may assign or otherwise transfer its rights and obligations under
this Agreement to a third party with the consent of Licensee, such consent not
to be unreasonably withheld or delayed. Licensee agrees to execute promptly any
documentation required by Augumenta to effect any such assignment or transfer
to an Affiliate of Augumenta or to a third party.
11.
Non-Disclosure
11.1 Licensee
acknowledges that the Materials, the related Intellectual Property Rights
including its object code and source code (if any) and related proprietary
information embodied therein or related thereto (the "Proprietary
Information"), contain valuable trade secrets of Augumenta and are also
protected by the copyright and patent laws of various countries. Licensee shall
not disclose or cause to be disclosed, in whole or in part, the Proprietary
Information, and the terms of this Agreement, to any third party (except as
specifically authorized in Section 2.6 of this Agreement). Contractors, and employees of Licensee and
Contractors shall be bound by written confidentiality agreements consistent
with the requirements of this Section 11.1 before such employees and
Contractors may access same. Licensee shall protect the confidentiality of the
Proprietary Information and the terms of this Agreement with the same degree of
care, but no less than reasonable care, as the Licensee uses to protect its own
confidential information. The obligations of confidentiality of this Section 11.1
shall survive for five (5) years after the termination or expiration of this
Agreement. Notwithstanding any other confidentiality or non-disclosure
provisions to which the parties have agreed previously, this Section 11.1
exclusively controls with respect to confidentiality obligations relating to
Proprietary Information.
11.2 Without limiting the generality of the foregoing Section 11.1, and
notwithstanding any other provision of this Agreement, Licensee shall not at
any time cause or permit any Augumenta Competitor to access or be in possession
of any Materials (whether or not included in Proof-Of-Concept Applications) or
Evaluation Results in whole or in part. "Augumenta Competitor"
means: (a) any individual, group or entity ("Person"),
wherever located, that is developing, marketing, and selling or licensing
software, alone or in conjunction with other products, which is similar to or
competitive with Materials; or (b) any Person that directly or indirectly
Controls, is Controlled by, or is under common Control with any such
individual, group, or entity referred to in Section 11.2(a).
11.3 Licensee shall immediately inform Augumenta of any unauthorized use
or disclosure of, or any unauthorized access to, or any theft or loss of any
copies of the Materials or other Proprietary Information which it suspects or
which comes to its attention.
12.
Waiver
The failure of either party to enforce or to exercise,
at any time or for any period of time, any term of or any right arising
pursuant to this Agreement does not constitute, and shall not be construed as,
a waiver of such term or right and shall in no way affect that party's right
later to enforce or exercise it.
13.
Severability
If any part of this Agreement is found to be
invalid, unlawful or unenforceable by a court of competent jurisdiction, such
invalid term shall be severed from the remaining portion of this Agreement
which will continue to be valid and enforceable to the fullest extent permitted
by the law. In the event of such invalidity, illegality or unenforceability,
the parties shall enter into good faith negotiations in order to agree on a
replacement for each such invalid, illegal or unenforceable provision with a
valid, legal and enforceable provision that most nearly and fairly approximates
the effect and intent of the invalid, illegal or unenforceable provision. If
the parties cannot agree on such replacement provisions, either party may
terminate this Agreement upon thirty (30) days' prior notice to the other
party.
14.
Publicity
The Parties shall treat the existence and material
terms of this Agreement as confidential and shall not disclose such information to
Third Parties without the prior written consent of the other Party. The Parties agree that
Augumenta is allowed to use Licensee name and logo on Augumenta website,
marketing and advertisement materials in a context of Licensee being one of Augumenta
Technology licensors.
15.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with
the laws of Finland, without reference to conflict of laws principles, if any. Any dispute, controversy or claim arising out of
or relating to this Agreement, or the breach, termination or validity thereof,
shall be finally settled by arbitration in accordance with the Arbitration
Rules of the Finland Chamber of Commerce. The Emergency Arbitrator provisions
shall not apply. The seat of arbitration shall be Helsinki,
Finland. The arbitral proceedings shall be conducted in the English language.
Last modified: 2017-06-19