Nov 15, 2024
STEREOLABS Software and Services License Agreement
Last Modified: November 15, 2024
This StereoLabs Software and Services License Agreement (“Agreement”) is entered between StereoLabs SAS, a company organized under the laws of France with an address at 85 Rue Gabriel Péri, 92120 Montrouge, France (“Licensor”) and the entity you represent, or, if you do not designate an entity, you individually (“Licensee”). This Agreement describes the legal framework under which Licensee may license Licensor’s Products and/or Services from Licensor. All references in this Agreement to the “sale” or “purchase” (or other similar terms) of any Licensor’s Products and/or Services shall mean the sale or purchase of a license to such Licensor’s Products and/or Services. Licensor and Licensee are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
Certain Definitions
“Authorized Accessories” means the products set out in Exhibit A attached hereto.
“Authorized User” means an employee of the Licensee who has been granted administrative control over the Software as part of the registration process or fulfillment process.
“Cloud Services” means the cloud-based services of a Subscription, if any, provided by Licensor to Licensee that are hosted by Licensor or its outsourced provider.
“Delivery” means the availability of the Cloud Services or On-Premise Licensed Software by Licensor to the Licensee via electronic or other means, without regard to when Licensee actually installs or uses such Cloud Services or On-Premise Licensed Software.
“Documentation” means the instruction manuals, user guides, and other information to be made available from time to time by Licensor in either printed or electronic form to the Licensee in connection with Licensee’s purchase of the applicable Licensor’s Products and/or Services.
"End User" means a customer of Licensee who has purchased Licensee’s Equipment which has installed or embedded the On-Premise License Software and who is authorized by the Licensee to use the On-Premise Licensed Software under the terms and conditions of the EULA.
"End User License Agreement” Or “EULA" means a legal contract between the Licensee and the End User which sets forth the End User’s rights and obligations with regard to the On-Premise Licensed Software and which includes terms and conditions which are, at the very least, as protective of Licensor and Licensor’s rights as set forth in this Agreement, including without limitations, Licensor’s intellectual property rights.
“Implementation Services” means the implementation, integration and/or customization services provided by Licensor pursuant to this Agreement, the additional terms and conditions related to such services as set forth in Exhibit B and the applicable Statement of Work (as defined in Exhibit B).
“Intellectual Property Rights” means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
“Licensee’s Application” means any software application, program, or solution that is developed or created by the Licensee using the SDK provided by the Licensor under this Agreement. Licensee’s Application(s) must comply with the terms and conditions of this Agreement, including any applicable usage restrictions, and may only be used or distributed as permitted herein.
“Licensee’s Equipment” means any machine, vehicle, system, environment, physical or virtual server, computer, central processing unit (CPU), workstation, laptop, mobile device, or any other type of electronic device or hardware system, including but not limited to cloud-based instances, virtual machines, and network-attached devices, upon which the On-Premise Licensed Software is installed or embedded or which access Cloud Services as permitted by this Agreement. This includes, but is not limited to, machines, vehicles, hardware or systems owned or leased by the Licensee, as well as any third-party machines, vehicles, hardware, systems, infrastructure and/or service utilized by the Licensee or on Licensee’s behalf for the installation and operation of the On-Premise Licensed Software or the Cloud Services.
“Licensee Data” means, other than Usage Data, non-public information, data and other content or information, in any form or medium, provided by or on behalf of Licensee, stored by Licensee or at Licensee’s direction, transmitted by any Licensee Equipment or Authorized Accessories, or data collected by Licensor as part of Cloud Services or On-Premise Licensed Software including, without limitation, the Personal Information of Licensee and/or any third party, including, but not limited to, End Users. Licensee Data may include but is not limited to: (i) identification, hardware configuration and/or status information related to Authorized Accessories or Licensee’s use of Authorized Accessories; (ii) data, content or information collected by and/or derived from the use of Licensee’s Applications; and (iii) data, content or information collected by Authorized Accessories, including camera raw streaming data.
“Licensor’s Products and/or Services” means any combination of Cloud Services, On-Premise Licensed Software, and the corresponding Support or Implementation Services provided by Licensor to Licensee pursuant to this Agreement, including any updates, enhancements, and modifications thereto provided by the Licensor, in each case as identified in the applicable Order.
“Non-Production Purposes” means use of any Licensor’s Products and/or Services by Licensee for strictly internal and non-commercial purposes and specifically restricting any use of the Licensee’s Products and/or Services on any deployed computer system, including without limitation commercial, any for-profit or publicly accessible system or use of the Licensor’s Products and/or Services in a production environment or for commercial or revenue-generating purposes.
“On-Premise Licensed Software” means the Software Applications (if applicable), Software Tools, the SDK and/or other software (including Updates to each) and corresponding Documentation licensed by Licensee pursuant to Licensee’s purchase of a Subscription pursuant to this Agreement and which is installed on or embedded in Licensee’s Equipment.
“Open-Source Software License” means any license that provides open-source software, including, but not limited to the MIT license, the Apache license, the BSD license, the GPL license or other similar licenses.
“Order” means any document (including any web form) agreed to between the parties which sets forth the Licensor’s Products and/or Services licensed by the Licensee and any relevant pricing. Multiple Orders may be entered into under this Agreement.
“Personal Information” means information provided to Licensor by Licensee or that Licensor collects, or otherwise Processes on behalf of Licensee, that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly, or indirectly, with a particular individual, household, or device, and encompasses all information defined as “Personal Information”, “Personal Data”, or other similar concept under any applicable law, regulation, or standard.
“Process” and its cognates means any operation or set of operations which is performed on information whether by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Production Purposes” means any use other than for Non-Production Purposes.
“SDK” means Licensor software development kit included as part of the On-Premise Licensed Software which allows Licensee’s to develop Licensee’s Applications.
“Software Application(s)” means the Licensor applications which perform specific tasks or functions as purchased by Licensee from Licensor as set forth in the applicable Order.
“Software Tools” means the Licensor software tools included as part of the On-Premise Licensed Software intended to extract and manipulate data from Licensor’s camera, including, without limitation, the ZED Explorer (streaming and recording 2D videos); ZED SensorView (IMU data viewer); ZED Diagnostic (to create a diagnostic file); ZED Viewer (recording 3D data); ZED Calibration (to calibrate the camera); ZED 360 (multi camera calibration); and ZED FU (for scanning objects in 3D).
“Subscription” means licenses to the Licensor’s Products and/or Services as purchased by Licensee from Licensor pursuant to this Agreement. Subscriptions may either be Prototype Subscriptions or Production Subscriptions, in either case, as identified in the applicable Order.
“Support” means the technical support services to be provided by Licensor to Licensee as set forth in the applicable Order.
“Update” means such enhancements, modifications, or additions to the Licensor’s Products and/or Services as may be made available from time to time by Licensor to Licensee.
“Usage Data” means any technical performance and/or usage data relating to the provision, use and performance of various aspects of the Licensor’s Products and/or Services that is generated as a result of Licensee’s use of the Licensor’s Products and/or Services and collected by or transmitted to Licensor, including, but not limited to, information on various metrics related to the interactions, behaviors, and patterns of users, including but not limited to frequency of use, session duration, feature usage, performance, clicks, downloads, input and output logs, API logs and error logs, timestamps and intermediary states of the Licensor’s system.
General Terms and Conditions
1. Orders; Subscriptions; Delivery.
1.1 Orders; Subscriptions. During the Term of this Agreement, and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may subscribe to Licensor’s Products and/or Services by the parties agreeing to Orders that reference this Agreement. The Licensor’s Products and/or Services are licensed pursuant to Subscriptions. Subscriptions will be for the term agreed to in an applicable Order.
1.2 Delivery. Unless otherwise agreed to, all Licensor’s Products and/or Services licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (by giving Licensee access to such Licensor’s Products and/or Services, Updates and Documentation). In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.
2. Term and Termination.
2.2 Term of Agreement. This Agreement shall begin on the Effective Date and shall continue in force as long as at least one Subscription under an applicable Order remains active (the “Term”).
2.3 Term of Orders. Orders issued under this Agreement shall begin and end as specified in each such Order. Thereafter, each Order shall automatically renew for additional one-year periods unless specified otherwise in the Order. Either party may notify the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term of the Order.
2.4 Termination. This Agreement and any Order may be terminated by either party upon notice if the other party (i) breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (ii) ceases to function as a going concern or to conduct operations in the normal course of business, or (iii) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. In addition, this Agreement and any Order may be terminated by Licensor: (a) upon Licensor’s reasonable determination that Licensee’s use of the Licensor’s Products and/or Services violates any applicable law or regulation; or (b) in the case of Cloud Services, upon Licensor’s reasonable determination that Licensee’s use of the Cloud Services poses a threat to the secure or reliable provision of services to other customers or to the data contained therein.
2.5 Effect of Termination. Upon termination of this Agreement or any Order, Licensee shall immediately uninstall or destroy (or at the sole option of Licensor, return) all copies of the Licensor’s Products and/or Services in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Licensor that the Licensee has complied with such obligation. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
2.6 Survival. Sections 2.5-2.7, 3.1, 3.2, 3.5, 3.6, 7, 8, 9, 10, 11, 13 and 14, all associated definitions, and all accrued rights to payment shall survive after termination or expiration of this Agreement.
2.7. Termination Not Exclusive Remedy. Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.
3. Ownership of Intellectual Property; License Grants; Restrictions; Feedback.
3.1 Ownership by Licensor: Licensor owns its Products and/or Services, Usage Data and any deliverables or results of any Implementation Services. All right, title, and interest in and to the Licensor’s Products and/or Services, including all Intellectual Property Rights therein, are and will remain with Licensor or it’s licensors. Licensor shall own all right, title and interest to any (i) Updates, modification, enhancements or improvements to Licensor’s products and/or services, (ii) intellectual property created by Licensor and delivered to Licensee pursuant to this Agreement or otherwise created by Licensor in the course of providing the Licensor’s Products and/or Services, Support, or any deliverables or the results of any Implementation Services under this Agreement (iii) the Usage Data (iv) suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee or any third party relating to the Licensor’s Products and/or Services, which are hereby assigned to Licensor, and (v) the Intellectual Property Rights in any of the foregoing.
3.2 Ownership by Licensee. Except to the extent licenses are expressly granted hereunder, nothing pursuant to this Agreement transfers the ownership to Licensor of Licensee’s Intellectual Property Rights in and to Licensee’s Products and/or Services.
3.3 License Grant by Licensor. Subject to and in consideration of timely payment by the Licensee of the license fees hereunder, and of Licensee’s compliance with the other terms and conditions of this Agreement:
(b) Prototype Subscriptions. In the event that the Licensee has purchased a Prototype Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Order specified in the applicable Order, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement), non-sublicensable license to: (i) install and use the SDK to develop the Licensee’s Application(s); (ii) incorporate portions of the SDK provided by Licensor to Licensee in object code into Licensee’s Application(s); (iii) to install and use the On-Premise Licensed Software and the Licensee’s Applications; and (iv) to access and use the Cloud Services, in each case of Section 3.3(a)(i)-(iv) solely in connection with Authorized Accessories and for Non-Production Purposes.
(c) Production Subscriptions. In the event that the Licensee has purchased a Production Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Order specified in the applicable Order, a limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement), non-sublicensable license to: (i) install and use the SDK to develop the Licensee’s Application(s); (ii) incorporate portions of the SDK provided by Licensor to Licensee in object code into Licensee’s Application(s); (iii) to install or embed the Software Applications and/or the Software Tools on or in Licensee’s Equipment; (iv) to use the On-Premise Licensed Software and the Licensee’s Applications; (v) to lease, sell or otherwise distribute the Licensee’s Equipment with the Software Applications installed or embedded to Licensee’s End Users pursuant to a EULA and (vi) to access and use the Cloud Services, in each case of Section 3.3(b)(i)-(iv) solely in connection with Authorized Accessories either internally or for Production Purposes.
3.4 License Grant to Components of the On-Premise Licensed Software Licensed Under an Open-Source Software License. Any software code contained in the On-Premise Licensed Software which is licensed under an Open-Source Software License will be licensed to Licensee under the terms and conditions of the license applicable to such software code, including license terms or conditions included in source code headers, “license” or “copying” file, or the like that may be associated with the software code. In each such case, Licensee’s licensed rights to the use of such software code are determined by the applicable Open-Source Software License and not this Agreement. Licensor does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws). To the extent the terms of the licenses applicable to components subject to an Open-Source Software License require Licensor to make an offer to provide source code or related information in connection with such components, such offer is hereby made. Any request for source code or related information should be directed only to licensing@stereolabs.com.
3.5 Restrictions to License Grant by Licensor. Licensee agrees that it (and its Authorized Users) will not without express written permission of Licensor: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the On-Premise Licensed Software or any part thereof, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the On-Premise Licensed Software; (b) make the Licensor’s Products and/or Services available to, or use the Licensor’s Products and/or Services for the benefit of, anyone other than Licensee; (c) use the Licensor’s Products and/or Services in connection with any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device (d) interfere or attempt to interfere in any manner with the functionality or proper working of the Cloud Services (including by disabling or circumventing features that prevent or limit access to or use of any content, or by interfering with, intruding into, disrupting, or making repeated accesses or requests that cause performance degradation to any network, equipment, server, or software system used to host or otherwise implement the Cloud Services); (e) except as expressly provided in this Agreement, assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the On-Premise Licensed Software, on a stand-alone basis or otherwise, or include any Cloud Services in a service bureau or outsourcing offering; (f) permit direct or indirect access to or use of the Licensor’s Products and/or Services in a way that circumvents any contractual usage limit; (g) copy the Licensor’s Products and/or Services or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); (h) access or use any Licensor’s Products and/or Services in order to build a competitive product or service; (i) use any means of automated data collection (“scraping”) or indexing (“crawling”), including by use of data mining tools, scripts, repeated data requests, automated systems (“robots”), or any other method to collect, copy, or aggregate information hosted by or on the Cloud Services; or (j) use the Cloud Services in a pornographic, defamatory or other unlawful manner, or in violation of any applicable laws or regulations or industry codes, or in violation of any laws protecting the privacy rights of individuals.
3.6 License Grant by Licensee.
(a) License to Licensee Data. During the term of the applicable Subscription, Licensee hereby grants all such rights and permissions in or relating to Licensee Data to Licensor and its subcontractors (including, without limitation, its sub-processors) as are necessary for Licensor to provide Licensee the Licensor’s Products and/or Services pursuant to this Agreement. In addition, Licensee hereby grants all such rights and permissions in or relating to Licensee Data to Licensor and its subcontractors (including, without limitation, its sub-processors) so that Licensee may use the Licensee Data to modify, improve, support and/or develop Licensor products and/or services and for Licensor to enforce its rights under this Agreement for any other legitimate business purpose. Licensor will make all Licensee Data in its possession available to Licensee for electronic retrieval for a period of thirty (30) days following expiration or termination of the Agreement or the applicable Order. For the avoidance of doubt, subject to applicable law, Licensor may retain the Licensee Data indefinitely and utilize such data as set forth in this Agreement.
(b) Consent to Use of De-identified Data. Notwithstanding any other provision of the Agreement to the contrary or otherwise, Licensee agrees that Licensor may use Licensee Data to create Deidentified Data (as defined herein) and to review, analyze, and otherwise use the Licensee Data that does not include any Personal Information, including, without limitation, Deidentified Data, to modify, improve, support and/or develop Licensor’s products and/or services, to create new products and services and to otherwise use the Deidentified Data for any of Licensor’s business purposes. “Deidentified Data” means data that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer. For purposes of clarification, Deidentified Data will not constitute Licensee Data or Personal Information. To the extent that any Usage Data contains Licensee’s Personal Information or the Personal Information of Licensee’s customers, such data shall be deidentified and made to be Deidentified Data prior to any use by Licensor.
(c) Remote Access to Licensee’s Internal Network. In connection with a Subscription, during the term of the applicable Subscription, Licensee hereby grants to Licensor and its subcontractors (including, without limitation, its sub-processors) remote access to the Licensee’s internal network and all the rights and permissions necessary in order for Licensor to be able to collect any raw streaming data from the applicable Authorized Accessories.
3.8 End User License Agreement.
The Licensee agrees that it will only lease, sell, or otherwise distribute Licensee's Equipment, which has the On-Premise Licensed Software installed or embedded, to an End User pursuant to a EULA that has been pre-approved in writing by the Licensor. The EULA shall not impose any obligation, liability, or responsibility on the Licensor, including but not limited to obligations related to warranty or indemnification. Furthermore, the EULA shall include terms and protections for the Licensor that are at least as favorable as those contained in this Agreement, ensuring that the Licensor’s rights and protections are preserved in any transaction with the End User.
4. Registration; Accessing the Licensor’s Products and/or Services; Licensee Responsibilities.
4.1 Access and Credentials. To access the Licensor’s Products and/or Services, Licensee must register and provide Licensor with certain information (such as identification or contact details) as part of the registration process. Licensee shall provide accurate, current and complete information required to enable its Authorized Users on the Service. Once registered, Licensee will be issued certain access credentials to access the Service. Licensee will maintain the accuracy of such information during the use of the Licensor’s Products and/or Services.
4.2 Licensee Responsibilities. Licensee shall require Authorized Users to maintain proper password security, and to maintain the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of (i) its Authorized Users, (ii) anybody accessing the Licensor’s Products and/or Services, using the credentials of any Authorized User, to the extent that such other individual did not gain access to the credentials due to an action or inaction of Licensor.
5. Control of the Cloud Services; Systems.
5.1 Control of the Cloud Services. The method and means of providing the Cloud Services shall be under the exclusive control, management, and supervision of Licensor. Licensor will provide and operate the Cloud Services, in a professional and commercially reasonable manner.
5.2 Systems. Each party shall retain sole responsibility for such party’s information technology infrastructure, including computers, servers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by such party or through the use of third-party services.
6. Fees; Payments; Taxes; Excess Use.
6.1 Accrual of Payment Rights. Except as may be set forth otherwise in an applicable Order, Licensor’s right to payment for the Licensor’s Products and/or Services licensed by Licensee shall accrue on the date the applicable Licensor’s Products and/or Services, are Delivered to Licensee. All payments accrued or made under this Agreement are non-cancelable and nonrefundable.
6.2 Invoicing and Payment; Discrepancies. Licensor will invoice Licensee in accordance with the relevant Order. Unless otherwise indicated, payment of the Subscription fee is due within 30 days of Licensor’s date of the applicable invoice. In the case of non-payment of any undisputed fees, Licensor may, at its sole discretion: (i) suspend Licensee’s access to the Cloud Services; (ii) terminate this Agreement; or (iii) continue to provide the Cloud Services, for a period solely determined by Licensor, in anticipation of full and prompt payment by Licensee. Any amount which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. Licensor shall be entitled to reimbursement for any costs actually incurred by Licensor for the collection of any past-due balance.
6.3 Taxes. Unless otherwise stated with respect to terms and conditions for a specific Subscription type, all stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Licensor’s Products and/or Services licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Licensor based on Licensor’s income.
6.4 Excess Use. Licensee’s Subscription use of the Licensor’s Products and/or Services may be subject to certain use limits, including but not limited to the number of End Users which may use the On-Premise Licensed Software or Cloud Services. Any such limitations will be set out in the applicable Order. If Licensee’s use of the applicable Licensor’s Products and/or Services exceeds the any such usage limits provided for in the then-current Order (“Service Capacity”), then Licensee shall be billed for such usage and Licensee agrees to pay the additional fees in the manner provided herein. To the extent that Licensee’s use of the applicable Licensor’s Products and/or Services exceeds the Service Capacity, (i) Licensee shall amend its applicable Order to reflect the Service Capacity; (ii) such new Service Capacity shall be deemed to be Licensee’s new minimum commitment going forward; and (iii) Licensee shall pay to Licensor the applicable difference in Fees after receipt of Licensor’s properly issued invoice.
7. Warranties; Disclaimer.
7.1 Licensee’s Warranties/Acknowledgments. Licensee represents and warrants that Licensee owns all Licensee Data or Licensee possesses all necessary rights, licenses, and consents required to grant the rights it grants to the Licensor pursuant to this Agreement and as necessary for Licensor to provide the Licensor’s Products and/or Services and satisfy its obligations under this Agreement. Licensee also represents and warrants that neither Licensee Data, nor the inclusion or use of the Licensee Data through or by the applicable Licensor’s Products and/or Services, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Licensee acknowledges and agrees that the Licensor's Products and/or Services may not provide accurate or complete responses or data. Licensee hereby releases and indemnifies Licensor from any and all liability arising from Licensee's reliance on the Licensor's Products and/or Services in making such decisions.
7.2 DISCLAIMER. EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS WARRANTIES, AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, OR COMPLETENESS OF THE DATA OR ANALYSIS GENERATED OR PROVIDED BY THE LICENSOR PRODUCTS AND/OR SERVICES, AND THE LICENSEE ASSUMES FULL RESPONSIBILITY FOR ANY CONSEQUENCES RESULTING FROM THE USE THEREOF.
8. Indemnities.
8.1 Indemnification by Licensee. Licensee agrees to fully indemnify and hold harmless the Licensor, its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to (1) the intellectual property rights or privacy rights in any of the Licensee Data; (2) a breach by Licensee of the Agreement, including, without liability, any of its warranties and/or representations set forth in this Agreement; or (3) Licensee’s use of the Licensor’s Products and/or Services in breach of the Agreement.
9. Limitation of Liability.
THE LICENSOR SHALL NOT BE HELD RESPONSIBLE OR LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCORRECT, INACCURATE, OR ERRONEOUS DATA, INFORMATION, OR ANALYSIS THAT MAY BE PROVIDED BY THE LICENSOR PRODUCTS AND/OR SERVICES. THE LICENSEE ACKNOWLEDGES AND AGREES THAT ANY DECISIONS MADE OR ACTIONS TAKEN BASED ON THE DATA OR ANALYSIS PROVIDED BY THE LICENSOR PRODUCTS AND/OR SERVICES ARE MADE AT THE LICENSEE'S OWN RISK. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF LICENSOR TO LICENSEE FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE LESSER OF THE AMOUNT PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT OR $1,000 ONE THOUSAND UNITED STATES DOLLARS. THE PARTIES AGREE HEREBY THAT THIS IS A REASONABLE LIMITATION ON LIABILITY.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT.
10. Confidentiality.
10.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. To qualify as Confidential Information, the disclosing party must conspicuously mark the Confidential Information in tangible form as “confidential,” “proprietary” or similar words generally understood to communicate the confidential nature of the information. Where it is not possible to use such marking, or when the information is disclosed orally or visually, the disclosing party must state at the time of disclosure that the information is Confidential Information, and when requested by the receiving party, summarize in writing the Confidential Information within a reasonable time of such request, describing the disclosure in sufficient detail. Despite the foregoing, the source code to Licensor’s Products and/or Services and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information whether or not so marked.
10.2 Exceptions. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the receiving party with the disclosing party’s approval; or (e) is independently developed by the receiving party without any use of the other party’s Confidential Information.
10.3 Required Disclosures. If a party is ordered to disclose Confidential Information by judicial or governmental authorities, then the receiving Party shall use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.
10.4 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).
11. Import and Export Regulations; U.S Government Provisions.
The Licensor’s Products and/or Services may be subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee may not remove or export from the United States or allow the export or re-export of Licensor’s Products and/or Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
12. Privacy and Security.
Each party agrees to abide by all applicable local, state, national, and international laws and regulations in connection with Licensor’s Products and/or Services, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the use of the Licensor’s Products and/or Services and all applicable privacy laws. Licensor will, taking into account the nature of the Personal Information and the risks involved in the processing of any such Personal Information, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to ensure the security and confidentiality of Personal Information.
13. Miscellaneous.
13.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
13.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in this Agreement or such other address as to which the other party has been notified, or sent by email to the email address as may be provided by one party to the other from time to time.
13.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
13.4 Assignment and Sublicensing. Either may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Despite the foregoing, Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Licensor as determined in Licensor’s reasonable discretion. In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.
13.5 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
13.6 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in the courts of the County of San Francisco, California, USA.
13.7 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
13.8 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
13.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.
13.10 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
14. Publicity.
Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Licensee further agrees to reasonably cooperate with Licensor to serve as a reference account upon request. Licensee grants Licensor permission to use Licensee’s name and logo(s) in connection with promotion of Licensor’s products and services. All representations of Licensee’s logo shall be exact copies of those used by Licensee in design, color and other details. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.
THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO LICENSEE’S ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.
Exhibit A
Authorized Accessories
StereoLabs-branded ZED, ZED 2, ZED2i, ZED Mini, ZED X or ZED X Mini or
StereLabs authorized, third-party branded, ZED hardware accessory whose packaging bears the official "Licensed for ZED" logo.
EXHIBIT B
ADDITIONAL TERMS AND CONDITIONS FOR IMPLEMENTATION, INTEGRATION AND/OR CUSTOMIZATION SERVICES
For the avoidance of doubt, in addition to the terms and conditions of the Agreement and the applicable Order, this Exhibit B provides additional terms and conditions of Licensee’s purchase of an Implementation Services pursuant to this Agreement. To the extent that any provision of the Agreement conflicts with the provision of this Exhibit, the terms of this Exhibit shall govern with respect to the Implementation Services provided by Licensor.
Description of the Implementation Services. Licensor, or its designated contractor, will provide Licensee the applicable Implementation Services set out in one of more statements of work (each a “Statement of Work) entered into by the Parties pursuant to this Agreement. Each Statement of work shall specify the scope, deliverables, timelines, pricing, and other relevant terms and conditions applicable to the Implementation Services. The Parties agree that any Implementation Services not explicitly outlined in a duly executed Statement of Work shall not be the responsibility of the Licensor. All Statements of Work shall be subject to the terms and conditions of this Agreement, and in the event of any conflict between this Agreement and a Statement of Work, the terms of this Agreement shall govern, unless otherwise expressly stated in the Statement of Work.
Payment for the Services. Licensee agrees to pay Licensor the fees for the Implementation Services as set out in the applicable Statement of Work. Fees charged by Licensor do not include any sales, use, excise, value-added, withholding or similar taxes, and do not include any duties or fees payable on the delivery of software in countries other than the United States; however, Licensor reserves the right, where permitted under applicable law, to include such taxes, and to invoice separately for any applicable taxes, duties or fees. Licensee will not be liable for taxes imposed on Licensor based on its income.
The Implementation Services are Provided “AS IS”; No Warranties; No Indemnities. DESPITE ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. THE IMPLEMENTATION SERVICES ARE DELIVERED AS IS, WITH NO WARRANTIES OF ANY KIND. LICENSOR PROVIDES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND MAKES NO WARRANTIES WITH REGARDING ERROR-FREE OR UNINTERRUPTED USE, WITH RESPECT TO THE IMPLEMENTATION SERVICES OR ANY RELATED DOCUMENTATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS DISTRIBUTORS, AGENTS, CONTRACTORS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS WARRANTY DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT, AND LICENSOR WOULD NOT BE ABLE TO PROVIDE THE IMPLEMENTATION SERVICES WITHOUT SUCH LIMITATIONS.
Licensee's License and Indemnification. In order for Licensor to perform the Implementation Services, Licensee may provide Licensor with certain hardware, software, data, or other materials and information. Licensee hereby grants Licensor a worldwide, royalty free license to use, modify or copy such materials provided by Licensee, solely for the purpose of completing the Implementation Services. Licensee agrees, at Licensee's expense, to defend, indemnify and hold Licensor harmless against any Losses that result from a claim that the hardware, software, data or other materials or information Licensee provides to Licensor hereunder infringes any patent, copyright, or trade secret rights or privacy right of any third party where Licensor is judicially determined to have infringed or misappropriated such third-party rights.
