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Right to Use Licence 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, except as permitted below.
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.
1.6 Licensee may transfer the right to use the Software Product and Hardware to its U.S. Government customers.
2. Term, Renewals and Termination
2.1 This Agreement is effective as of the purchase date for the Software Product (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.
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. Except as permitted in 1.6 above, 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 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.
5.2 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.
5.3 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.
5.4 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. The Licensee bears the cost and risks associated with 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 the Licensee by Ubisense for any exceptions that are not covered under the Limited Warranties as described above.
5.4.1 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.
5.4.2 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.
5.5 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.
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. Licensee may disclose any Ubisense Proprietary Information to the extent so required by law or order of court or governmental agency, provided that Licensee give Ubisense reasonable notice of such requirement.
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 Licensee is responsible for its compliance with all such regulations. 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.
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.
17. Pricing 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 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.
18. U.S. Government Restricted Rights
The Ubisense Software Product is deemed to be “commercial computer software”, pursuant to DFAR Section 227.7202 and FAR Section 12.212 as applicable, and is delivered to Licensee with Restricted Rights. Such restricted rights are those identified in this Agreement and as set forth in the “Restricted Rights Notice” contained in paragraph (g) (3) (i) (Alternate III) of FAR 52.227-14, Rights in Data-General, including Alternate III (June 1987). The manufacturer is Ubisense Limited, 5445 DTC Parkway, Suite 1110, Greenwood Village, Colorado 80111. Any use, modification, reproduction, release, performance, display or disclosure of the Software Product by the U.S. Government shall be governed solely by the terms of Ubisense’s Right to Use License Agreement.