SDK Evaluation License Agreement
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:
- Augumenta develops and licenses proprietary hand gesture control and augmented reality software for use on wearable devices, and related documentation.
- 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“.
- 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.
2.6 Licensee may during the Term disclose the Materials to 3rd party subcontractors (“Contractors”) for the sole purpose of enabling such Contractors to assist Licensee in developing Proof-Of-Concept Applications. Licensee shall enter into written agreements with Contractors consistent with the requirements of this Section 2.6 prior to disclosure of any Materials to same, and sufficient to allow protection of the Intellectual Property Rights of Augumenta. All use of Materials by Contractors shall be in compliance with this Agreement, including the obligations of Section 11. Any services such Contractor performs in connection with the Materials shall be solely for Licensee’s benefit on a work-made-for-hire basis, and such Contractors shall assign sole ownership and exclusive rights of any work product in connection with the Materials, to Licensee, without retaining use of, or any right, title or license of any kind to same. Contractors shall return to Licensee all copies of or materials containing Materials upon the earlier of the end of Contractors’ performance of services to Licensee or termination or expiration of this 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. Indemnification
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