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Ubisense Right To Use License Agreement
Whereas, this
Agreement specifies the terms and conditions under which Ubisense will grant a
right to use Software Product and sell Hardware (specifically the sensors and
the tags) to Licensee, and provide
Support and Maintenance services effective from the initial date of delivery.
Now, therefore,
based upon the premises and respective promises and obligations contained
herein, the Parties agree to be bound by the terms and conditions of this
Agreement.
1. Grant
of Right to Use License and Ownership
1.1 Subject to payment to Ubisense of all
applicable fees and subject to full compliance by the Licensee with the terms
of this Agreement, Ubisense grants Licensee a perpetual, non-exclusive,
non-transferable, license to use the Software Product for Licensee´s internal
business purposes only, without the right to sublicense or trade the Software.
1.2 All Software Product is licensed and not
sold unconditionally to Licensee. All
proprietary rights in and ownership of the Software shall remain with Ubisense.
Licensee agrees that Ubisense owns all proprietary rights, including, but not
limited to any patent, copyright, trade secret, trademark and other similar
proprietary rights, in and to the Software Product and Hardware and any
corrections, bug fixes, and updates to such Software Product and Hardware.
1.3 Licensee may make Application
Programs. For purposes of this section, "Application Programs" means new software product developed by Licensee that
communicates with the Ubisense Software Product using Ubisense´s published API
(Application Program Interface). These Application Programs (excluding the
Ubisense Software) are the exclusive property of the Licensee.
1.4 Licensee shall not pledge the Software
Product as collateral or otherwise, and shall not permit the encumbrance of
such Software Product with any lien or security interest.
1.5 Upon full compliance with all applicable
terms for payment of the Hardware and all other applicable terms in this
Agreement, title and ownership to the Hardware shall pass to the Licensee.
2. Term, Renewals and Termination
2.1 This Agreement is effective as of the date
last signed below (the "Effective Date") and all rights, duties, obligations
and responsibilities of the Parties shall commence on the Effective Date unless
the contrary appears in this Agreement.
2.2 This Agreement, subject to its terms and in
particular 2.3 below, shall remain in force indefinitely provided Licensee pays
all applicable fees.
2.3 Without prejudice to any other remedies,
the Parties shall have the right to terminate this Agreement:
(a) if a Party commits a material breach of this
Agreement and such breach remains uncured 30 days after written notice of such
breach is delivered to the breaching Party;
(b) immediately if either Party makes an
assignment for the benefit of creditors, or commences or has commenced against
it any proceeding in bankruptcy, insolvency, or reorganization pursuant to
bankruptcy laws, laws of debtor´s moratorium or similar laws; or
(c) immediately by Ubisense if Licensee fails to
pay within 30 days of the due payment
date any monies due to Ubisense pursuant to this Agreement.
2.4 Upon termination of this Agreement for what
ever reason Licensee shall cease using the Software Product and certify to Ubisense
within one month of such termination that Licensee has returned to Ubisense the
Software Product and all copies of it. This requirement applies to copies of the Software Product in all forms,
partial and complete, in all types of media and computer memory, and whether or
not modified or merged into other materials.
2.5 Hardware must be disposed of in an
environmentally sound manner by the Licensee at its own expense in accordance
with local environment regulations (e.g. WEEE) whether as a result of
termination of this Agreement or in any circumstances where the Hardware is no
longer used. This also includes the environmentally sound disposal by the
Licensee of any equipment which the Hardware replaces.
3. Support and Maintenance
3.1 Ubisense shall provide comprehensive Support
and Maintenance services for Software Product and Hardware subject to Licensee
paying all applicable fees. Ubisense shall
provide Support and Maintenance on any Software Product licensed and Hardware purchased
hereunder. Major releases of new
functionality are not included in Support and Maintenance. Such upgrades will
be priced separately and incrementally. Ubisense shall not be required to
perform support services with respect to problems caused by third party
products or any Software Product or Hardware that has been altered or modified
by anyone other than Ubisense.
3.2 Subject to full compliance with the terms
and conditions of this Agreement, Licensee may continue to use the Software
Product and Hardware indefinitely. Should Licensee decide it wishes to
terminate its annual Support and Maintenance, it may only do so by giving
Ubisense a minimum of 3 months written notice to terminate after the first 12
months following delivery. If Licensee
wishes to resume receiving annual Support and Maintenance, Licensee will be
required to pay for any voided period of Support and Maintenance.
3.3 Ubisense will not provide Support and
Maintenance on a time and materials basis.
4. Other
Terms and Conditions
4.1 Restricted Use. Licensee may not cause or
permit another to use, lease, rent, transfer, distribute, timeshare or allow
access to the Software Product or Hardware, nor assign any rights hereunder to
a third party without Ubisense`s prior written agreement, such consent not to
be unreasonably withheld. Notwithstanding the foregoing, Licensee may permit its contractors to
use the Software Product and Hardware for Licensee`s internal business purposes
only. Licensee shall ensure full
compliance by third parties with the terms of this Agreement and shall assume
all responsibility, and shall indemnify Ubisense for any claims, expenses or
damages, related to any non-compliance.
4.2 Reverse Engineering and Decompilation.
Licensee may not copy, translate, modify, disassemble, reverse engineer,
analyze, or decompile any part
of the Software Product and Hardware.
5. Limited Warranties
5.1.1 Hardware Product - Ubisense warrants its
hardware products to be free from defects in workmanship and materials, under
normal use and service, for a period of one year from the date of purchase from
Ubisense.
5.1.2 If a product does not operate as warranted
during the applicable warranty period, due to defects in either materials or
workmanship, Ubisense shall, at its option and expense, (1) repair the
defective product or part; or (2) deliver to Licensee an equivalent product or
part to replace the defective item. All
products that are swapped-out will become the property of Ubisense.
5.1.3 The warranty does not cover: periodic
maintenance and repair or replacement of parts due to wear and tear;
replacement of consumables, such as batteries, bulbs, etc; damage or defects
caused by use due to improper installation, improper testing or improper
operation and failure to maintain the product in accordance with the operating
instructions; damage or changes to the product as a result of abuse, misuse,
accident, neglect, alteration, corrosion, force majeure and any acts of God;
damage caused by repair or attempted repair by unauthorised persons;
adjustments or adaptations without Ubisense`s prior written consent, including
a) upgrading the product beyond specifications or features described in the
instruction manual; and b) modifications to the product to conform it to
national or local technical or safety standards in countries other than those
for which the product was specifically designed and manufactured for;
accidents, fire, liquids, chemicals, other substances, flooding, vibrations,
excessive heat, improper ventilation, power surges, excess or incorrect supply
or input voltage, radiation, electrostatic discharges including lighting, other
external forces and impacts.
5.1.4 The warranty does not cover any updates and
patches necessary to fix problems that were not discovered during normal
testing or to fix a problem peculiar to a licensee`s site and situation. If a product is found to be defective, the
product may be returned with a pre-authorised return material authorization
(RMA) number and details of the purchase invoice to Ubisense. This does not
cover transport costs and risks associated with transport of your product to
and from Ubisense. If you ship the
product, you must assume the risk of damage or loss in transit and pay the
shipping charge. The Licensee must bear
the cost of delivering the defective item to Ubisense for repair. Replacement
products may be new or reconditioned. Any replaced or repaired product or part has a ninety (90) days warranty
or the remainder of the original one year warranty period, whichever is longer.
Ubisense shall not be responsible for any software, firmware, information,
memory or customer data that are contained in, stored on, or integrated with
any products returned to Ubisense pursuant to any warranty claim. To qualify
for this limited hardware warranty, the Licensee must complete the Product
Registration process, as documented during the installation and configuration
of the product.. Warranty registration
must be completed and returned to Ubisense within ninety (90) days from the
date of purchase. A service charge may be levied to Licensee by Ubisense for
any exceptions that are not covered under the Limited Warranties as described
above.
5.2.1 Software Product - Ubisense warrants that
the software programs licensed from it will perform substantially in
conformance to its published specifications for a period of one year from the
date of purchase from Ubisense. Ubisense warrants any media supplied by
Ubisense containing software against failure during the warranty period. Neither software updates nor upgrades are
provided under this warranty. Ubisense's
sole obligation shall be to replace any defective software products with
products that substantially conform to Ubisense's applicable published
specifications.
5.2.2 Ubisense does not warrant that its software
products will work in combination with any other hardware or software
applications that are provided by third parties.
5.3 FURTHER FOR THE AVOIDANCE OF DOUBT THE
WARRANTIES PROVIDED UNDER THIS SECTION ARE EXCLUSIVE AND ARE THE ONLY
WARRANTIES GIVEN BY UBISENSE. UBISENSE HEREBY EXCLUDES TO THE EXTENT PERMITTED
BY LAW ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND OTHER TERMS,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, CONCERNING THIS AGREEMENT, THE
SOFTWARE PRODUCT AND HARDWARE, ANY OTHER GOODS SUPPLIED OR SERVICES PERFORMED
UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED TERMS AS TO
QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING,
UBISENSE DOES NOT WARRANT THAT THE SOFTWARE PRODUCT OR HARDWARE (OR THE
LICENSEE`S USE THEREOF) WILL BE FREE FROM ERRORS OR THAT USE WILL BE UNINTERRUPTED.
6. Limitation of Liability
6.1 The total liability of Ubisense in
relation to or in connection with all claims by or on behalf of Licensee of any
kind, whether in contract, under the warranties, indemnity, tort (including
negligence), strict liability, or otherwise, arising out of or relating to this
Agreement, shall not exceed the depreciated value of the license fees actually
paid by Licensee to Ubisense pursuant to this Agreement. All liabilities of Ubisense on all claims of
any kind shall terminate upon expiration of the Warranty Period.
6.2 In no event shall either Party be
liable to the other for loss of use, interruption of business or any
consequential, incidental, special, indirect, speculative, punitive or
exemplary damages, costs, or claims of any nature whatsoever (including lost
profits), arising out of or relating to this Agreement regardless of the form of action whether in
contract, warranty, indemnity, tort (including negligence), strict liability,
or otherwise, even if the other Party has been advised of the possibility of
such damages.
6.3 Neither Party shall have any
liability or be considered to be in breach or default of its obligations under
this Agreement to the extent that performance of such obligation is delayed
directly or indirectly, due to causes beyond its reasonable control (including,
but not limited to acts of God, act or failure to act of governmental
authorities, terrorism, war whether declared or undeclared, insurrection, riot,
civic commotion, shortages, strike, lockout, fire, earthquake, calamity, blizzard,
ice storm, windstorm, flood, epidemic, material shortages, energy shortages or
power outages, including rolling black- outs, failure of any suppliers, freight
handlers, transportation vendors or like activities, or any other reasonable
delay).
7. Use
of Marks
All trademarks,
service marks, trade names, logos, or other words or symbols (collectively the "Marks") identifying the Software
Product and Hardware are and shall remain the exclusive property of Ubisense,
whether or not specifically recognized or perfected under the laws of the United
States, England, the European Union or any other nation. Licensee shall not acquire any rights in the
Marks, and agrees to maintain and respect such Marks and copyright notices of Ubisense
and the Software Product and Hardware and any permitted copies thereof.
8. Proprietary Information; Equitable Relief
8.1 All information concerning or embedded in
the Software Product and Hardware (including but not limited to source code) is
confidential and is Ubisense´s proprietary information ("Proprietary Information")
whether or not such information is marked as Proprietary Information. The Proprietary Information includes
commercially valuable, substantial trade secrets, the design and development of
which reflect the effort of skilled development experts and investment of
considerable amounts of time and money.
8.2 Licensee acknowledges that any use or
threatened use of the Software Product or Hardware in a manner inconsistent
with this Agreement or other misuse of the Proprietary Information of Ubisense will
cause immediate irreparable harm to Ubisense for which there is no adequate
remedy of law. Accordingly, Licensee
agrees that Ubisense shall be entitled to immediate and permanent injunctive
relief from a court of competent jurisdiction in the event of any such breach by
Licensee.
8.3 Nothing contained herein shall limit Ubisense´s
right to any remedies of law, including the recovery of damages from Licensee
from breach of this Agreement. The obligations set forth in this paragraph shall
not apply to the extent that such information: (i) is or becomes available in
the public domain other than by the Licensee; or (ii) is known or becomes known
by Licensee independent from any disclosure by Ubisense.
9. Indemnification
9.1 Subject to the terms of this
License, Ubisense shall indemnify Licensee against any damages, cost and
expenses arising out of any suit, claim, or proceeding (collectively referred
to as a "Claim") alleging that the Software Product or Hardware infringes a
patent presently issued in the USA or UK ; provided that: (a) Licensee promptly notifies Ubisense in
writing of any such Claim; (b) Licensee makes no admission of liability and
gives Ubisense sole authority, at Ubisense´s expense, to direct and control all
defence, settlement, and compromise negotiations; and (c) Licensee provides Ubisense
with such full disclosure and assistance as may be reasonably required to
defend any such Claim.
9.2 Ubisense shall have no obligation or
liability with respect to any Claim based upon: (a) any Software Product or Hardware which has been altered, modified,
or revised by Licensee; (b) the combination, operation, or use of any Software
Product or Hardware with other products when such combination is part of any
allegedly infringing process; (c) failure of Licensee to implement any Software
Product or Hardware update provided by Ubisense that would have prevented the
Claim; or (d) unauthorized use of the Software Product or Hardware, including,
without limitation, a breach of the provisions of this Agreement.
9.3 Should any Software Product licensed
or Hardware purchased hereunder, or any part thereof, become or, in Ubisense´s opinion,
be likely to become, the subject of a Claim, Ubisense shall at its option (a)
procure for Licensee the right to continue using the Software Product or
Hardware or portion thereof, (b) modify it to make it non-infringing, or (c)
failing (a) or (b), take back the Software Product or Hardware and refund any
fees received by Ubisense attributable to the infringing Software Product or
Hardware based on the then-current depreciated value (using a straight-line
depreciation method over 4 years).
9.4 This section fully sets out and
specifies Ubisense`s entire liability for or arising out of a Claim.
10. Compliance
with Export Control Law; No export rights
Licensee
understands and recognizes that the Software Product and Hardware and any other
technical information made available to it hereunder may be subject to the
export administration regulations of the European Union, United Kingdom, United
States Department of Commerce and other United States government regulations
related to the export of technical data and equipment and products. Licensee agrees that it will not export or
re-export, directly or indirectly, the Software Product, Hardware and any other technical information without the prior
written consent of Ubisense. Licensee hereby agrees to indemnify and hold Ubisense
harmless from any breach of this Section.
11. Parties
Bound By Agreement, Successors and Assigns
11.1 The delegation or assignment by
Licensee of any or all of its duties or rights under this Agreement without Ubisense`s
prior written consent shall be void, except as set out in 11.2 below.
11.2 This License shall be assignable by either
party in conjunction with (a) a sale of all or substantially all of its assets;
or (b) a merger or similar transaction. Upon and to the extent of any such
assignment, this Agreement shall be binding upon and inure to the benefit of
the assignee. The assignee shall also be responsible for ongoing obligations or
any liability hereunder.
12. Scope
of Agreement; Precedence of Agreement
12.1 This Agreement shall apply solely to Licensee.
12.2 Notwithstanding the content of any
Licensee Purchase Order or any other document or records, whether in writing or
electronic form, relating to the subject matter of this Agreement, the written
terms of this Agreement set forth herein shall govern and take precedence; any
conflicting, inconsistent, or additional terms contained in such other
documents shall be null and void. Any
modification or amendment of this agreement must be made in writing after the
effective date hereof and signed by an officer of Ubisense.
13. Survival
Any and all
provisions or obligations contained in this Agreement or its attachments which
by their nature or effect are required or intended to be observed, kept, or
performed after termination of this Agreement will survive such termination of
this Agreement and will remain binding upon and for the benefit of the Parties
and their permitted successors (including, without limitation, successors by
merger) including, but not limited to, those provisions and obligations
relating to indemnity, confidentiality and protection of Ubisense´s intellectual
property rights.
14. Independent
Contractor
Both Parties are
acting as independent contractors. Personnel supplied by either Party hereunder are not personnel or agents
of the other. Each Party will remain
responsible for the withholding and payment of all state, and local personal
income, wage, earnings, occupation, social security, unemployment, sickness and
disability insurance taxes, payroll levies or employee benefit requirements
attributable to that Party, its employees, and its contractors.
15. General
Terms
15.1 Should any
provision of this Agreement require judicial interpretation, the Parties agree
that the court or arbitrators interpreting or construing the same shall not
apply a presumption that the terms of this Agreement shall be more strictly
construed against one Party than against the other Party.
15.2 If any provision of this Agreement is found
to be void or unenforceable the Parties hereby agree that they will replace any
such void or unenforceable provision with a new provision that achieves substantially
the same practical or economic effect and which is valid and enforceable.
15.3 No
written waiver shall constitute, or be construed as, a waiver of any other
obligation or condition of this Agreement.
15.4 The terms of this Agreement shall take precedence
over all other documents.
16. Governing Law and Jurisdiction
16.1 Any claim by
either party against the other shall be brought under the Laws of England and
the parties hereto consent to the exclusive jurisdiction of the Courts of Colorado.
16.2 The validity,
performance and all matters relating to the interpretation and effect of this Agreement
shall be construed and interpreted in accordance with the Laws of Colorado.
17. Pricing,
Ordering Process and Payment Terms
17.1 Pricing shall
be based on a formal quotation provided by Ubisense. The validity of the
quotation will expire after 30 days unless otherwise stated.
17.2 Ordering
Process
Licensee shall
issue a Purchase Order for Software Product and Hardware to Ubisense, or alternatively
licensee will sign the Ubisense quotation proposal acceptance, or make an
online electronic order and payment. A Purchase Order shall usually contain the
following information:
Licensee billing address
Licensee shipping address
Licensee Purchase Order Number
Contact name, phone number, and
e-mail address to which Software Product and Hardware is to be delivered
Confirmation of payment terms as set
out in 17.4 below
Quantity, unit price and
description of each Software Product and Hardware being ordered and the
applicable freight charges
Support and Maintenance term and fees
Total cost of the Purchase Order
17.3 Shipments will be CIF (Cost, insurance,
freight) destination. All and any import taxes shall be for the account of
Licensee. Risk in the goods shall pass to Licensee when delivered to Licensee. Licensee´s
acknowledgement of delivery from freight agent automatically confirms goods
have been delivered undamaged.
17.4 Payment Terms
17.4.1 Unless otherwise indicated in the Ubisense
quotation, Licensee agrees to make all payments to Ubisense for the Software
Product and Hardware in advance, payable in US Dollars as follows: a) 100% of
the total cost payable with order on orders less than $40,000; b) 50% of the
total cost payable with order and 50% payable upon delivery on orders above $40,000.
Delivery will normally be within 60 days from date of Purchase Order unless
Licensee advises Ubisense that a longer period is required. Such payment shall
include required export documentation and handling fees (if applicable). Support
and Maintenance fees are payable annually in advance with effect from the delivery
date of Software Product and Hardware.
17.4.2 Licensee agrees to pay any taxes or
similar charges, including but not limited to VAT, imposed by governmental
entities on Software Product or Hardware supplied or used pursuant to this
Agreement. Licensee may not deduct any withholding taxes from amounts due
unless it has sought and received prior written consent from Ubisense.
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