END USER LICENSE AGREEMENT (SDK)
PLEASE CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”). NO INDIVIDUAL, CORPORATION, ENTITY OR ORGANIZATION (“YOU”) IS AUTHORIZED TO USE THIS SOFTWARE (DEFINED BELOW) UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS EULA. YOU SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO THE TERMS OF THIS EULA UPON YOUR DOWNLOAD, INSTALLATION, COPYING AND/OR USE OF THE SOFTWARE
THIS EULA IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND EXVISION, INC. (HEREINAFTER “LICENSOR” OR “US”) FOR:
(A) THE EXVISION EGS SOFTWARE DEVELOPMENT KIT, INCLUDING THEIR RESPECTIVE ACCOMPANYING COMPUTER SOFTWARE IN OBJECT CODE FORM, ASSOCIATED MODULES, FILES, LIBRARIES, MEDIA, PRINTED MATERIALS, AND “ONLINE” OR ELECTRONIC DOCUMENTATION, AND ANY UPGRADES, MODIFIED VERSIONS, UPDATES, ADDITIONS AND COPIES OF THE SDK LICENSED TO YOU BY LICENSOR (COLLECTIVELY, THE “SDK”); AND
(B) THE SAMPLE CODE (THE “SAMPLE CODE” AND TOGETHER WITH THE “SDK”, THE “SOFTWARE”).
BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN, INCLUDING BUT NOT LIMITED TO ALL DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
As used in this EULA, “SDK” means Sample Code (defined below), Tools (defined below), API information, documentation, including Documentation (defined below) in on-line format, and related items.
This EULA does not govern use of Licensor Products (defined below). See the end user license agreements accompanying the Licensor Products for governing terms.
Licensor Products means Licensor’s application programs, technologies and software such as its proprietary EGS software program which are or may be made available for licensing to the general public, including any modified versions or upgrades thereof. Only those items placed on your computer by executing the SDK installer and/or otherwise manually downloaded by you are part of the SDK described herein.
As used in this EULA, “Sample Code” means software code that Licensor has made available for you (within the SDK zip file or at Licensor’s developer website) to incorporate into your application programs.
As used in this EULA, “Software” means the SDK and Sample Code.
As used in this EULA, “Tools” refer to programs and utilities that may be included for you to test or compile your application programs.
As used in this EULA, “Documentation” means any related explanatory materials accompanying the SDK.
GRANT OF LICENSE
Subject to the restrictions contained herein, Licensor grants to you a nonexclusive, nontransferable, royalty-free license to use the items in the SDK only for the purpose of internal development of application programs designed to function with Licensor Products.
Under this EULA, you may use, modify or merge all or portions of the Sample Code with your application programs and distribute it only as part of your products in object code form. Any modified or merged portion of the Sample Code is subject to this EULA. You are required to include Licensor’s copyright notices on your application programs except for those programs in which you include a copyright notice reflecting your copyright ownership in such programs. You may not assign your rights or obligations granted under this EULA without Licensor’s prior written consent. Any attempted assignment or transfer without such prior written consent shall be void and of no effect.
(b) Subject to the permissions described immediately above, you may use the SDK solely for the purpose of internal development. You may not include any portion of the SDK in your products. You may not sell, sublicense, rent, loan or lease any portion of the SDK to any third party. You may not reverse engineer, decompile or disassemble any portion of the SDK. To the extent that local law grants you the right to decompile software in order to obtain information necessary to render the software interoperable with other software, you shall first request to Licensor in writing to provide you with the necessary information. Licensor has the right to impose reasonable conditions such as a reasonable fee for doing so. Requests for information should be directed to the Licensor at the address provided in the SDK or such other address made available at http://www.exvision.co.jp from time to time.
You may make a limited number of copies of the SDK to be used by your employees or consultants as provided herein, and not for general business purposes, and such employees or consultants shall be subject to the obligations and restrictions in this EULA.
All rights not expressly granted herein are reserved by Licensor.
The Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Licensor and its licensors. Licensor and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to us with respect to the Software shall be Licensor’s property. We may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Licensor does not waive any rights to use similar or related ideas previously known to Licensor, developed by its employees, or obtained from other sources. You agree that all copies of the items in the SDK, reproduced for any reason by you, contain the same copyright notices, and other proprietary notices as appropriate, as appear on or in the master items delivered by Licensor in the SDK. Licensor and/or its suppliers retain title and ownership of the items in the SDK, the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist.
REPLACEMENT, MODIFICATION AND/OR UPGRADES
Licensor may, from time to time, replace, modify or update the Software. Any such replacement or modified Software code or update to the Software will be considered part of the Software and subject to the terms of this EULA (unless this EULA is superseded by a further EULA accompanying such replacement or modified version of or upgrade to the Software).
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR PROVIDES THE SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SOFTWARE. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND LICENSOR DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES. LICENSOR WILL HAVE NO RESPONSIBILITY TO PROVIDE MAINTENANCE OR SUPPORT SERVICES WITH RESPECT TO THE SOFTWARE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EXCEED ONE HUNDRED DOLLARS ($100). LICENSOR DISCLAIMS ALL LIABILITY OF ANY KIND OF LICENSOR’S LICENSORS AND SUPPLIERS.
TERM AND TERMINATION
This EULA and the license granted hereunder are effective on the date you first use the Software and shall continue unless this EULA is terminated under this section. Licensor may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Licensor.
All licenses granted herein shall become null and void upon the termination of this Agreement and you must stop all use of the Software. Following the termination of this Agreement, you shall return to Licensor any and all Software program documentation or any other materials, copies or reproductions of the foregoing, relating to the Software, and upgrade(s), update(s) and enhancements thereto. Further, upon termination of this Agreement, both parties shall promptly, and in any event within ten (10) calendar days following termination, return to the other party all other property and confidential information belonging to the other, in all forms partial and complete, in all types of media and computer memory, and whether or not merged with other materials, or to the extent such return is not reasonably practical, will destroy the foregoing and provide the originating party with a certificate by an officer of the company certifying destruction.
NON-BLOCKING OF DEVELOPMENT
You acknowledge that Licensor is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that you may develop based on your license herein. Nothing in this EULA shall impair, limit or curtail Licensor’s right to continue with its development, maintenance and/or distribution of Licensor’s technology or products. You agree that you shall not assert in any way any patent owned by you arising out of or in connection with this SDK or modifications made thereto against Licensor, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors for the manufacture, use, import, licensing, offer for sale or sale of any Licensor products.
Certain items of software included with the Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Licensor makes such Open Source Software, and Licensor’s modifications to that Open Source Software, available by written request to Licensor. Please also refer to the “Open Source License Acknowledgment and Third Party Copyrights” available at the following link: Open Source License Acknowledgment and Third Party Copyrights.
U.S. GOVERNMENT RIGHTS
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required. You will indemnify and hold Licensor harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
This EULA contains the entire agreement and understanding between the Parties concerning those matters which are addressed herein, and supersedes and replaces all prior negotiations or proposed agreements, written or oral, regarding said matters. This EULA may not be amended, modified, altered or otherwise changed in any respect and no provision of this Agreement may be waived except by written agreement signed by Licensor’s authorized representative.
This EULA shall be binding upon and inure to the benefit of you and your respective successors and permitted assigns. You may not assign this EULA or any of its rights, interests or obligations hereunder without Licensor’s prior written consent.
Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
The failure at any time of any Party to require performance by any other Party of any responsibility or obligation provided for in this Agreement shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by either Party of a breach of any provision of this Agreement by the other Party constitute a waiver of any succeeding breach of the same or any other obligation itself.
You agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Licensor may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential information.
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