SECONDSIGHT SOFTWARE IS LICENSED, NOT SOLD. USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THE SOFTWARE. USE OF SOFTWARE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT PURCHASE ORDER TERMS AND CONDITIONS SHALL NOT APPLY.
END-USER LICENSE AGREEMENT ("Agreement")
This is a legal agreement concerning the use of Software (as defined in Section 2) between the company acquiring the license ("Customer"), and SecondSight, Inc. ("SecondSight"). If you are using the Software as an employee, the legal entity that employs you is the "Customer." Your employer may have already accepted a version of the terms and conditions in this Agreement by signing a license agreement. In all other circumstances, you are binding your employer and yourself personally as an employee, to this Agreement by using the Software. Unless a license agreement has been signed by Customer and an authorized representative of SecondSight, this Agreement and the applicable quotation contain the parties' entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements.
1. ORDERS, FEES AND PAYMENT.
1.1 To the extent Customer (or upon agreement by SecondSight, Customer's appointed third party buying agent) places and SecondSight accepts purchase orders, each such purchase order will constitute a contract between Customer and SecondSight, which shall be governed solely and exclusively by the terms and conditions of this Agreement, any applicable addenda and the applicable quotation (collectively the "Order"), whether or not these documents are referenced in the Customer's purchase order. Any additional or conflicting terms and conditions appearing in the Customer's purchase order will not be effective unless agreed in writing by both parties' authorized representatives.
1.2 All license fees are non-refundable, except as expressly provided in this Agreement. Any past due invoices will be subject to interest charges in the amount of one and one-half percent per month or the applicable legal rate currently in effect, whichever is lower. Prices do not include freight, insurance, customs duties, taxes or other similar charges, which SecondSight will invoice separately. Unless provided with a certificate of exemption, SecondSight will invoice Customer for all applicable taxes. Notwithstanding anything to the contrary, if Customer appoints a third party buying agent to place purchase orders and/or make payments on Customer's behalf, Customer shall be liable for payment under such orders in the event of default by the third party buying agent. This Section 1.2 shall survive termination or expiration of this Agreement.
1.3 Any products delivered electronically shall be deemed delivered when made available to Customer for download, and any products delivered in tangible media are delivered FOB Origin. SecondSight's delivery of Software by electronic means is subject to Customer's provision of both a primary and an alternate e-mail address.
2. OWNERSHIP; GRANT OF LICENSE.
2.1 The software installed, downloaded, or otherwise acquired by Customer under this Agreement, including any upgrades, updates, modifications, revisions, copies, and documentation ("Software") are copyrighted, trade secret and confidential information of SecondSight or its licensors, who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. SecondSight grants to Customer, subject to Customer's compliance with the terms and conditions of this Agreement including but not limited to payment of applicable license fees, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object or executable code form; (b) as specified in the Order; and (c) for Customer's internal business purposes.
2.2 The Order will identify the specific type of Software licenses purchased and additional restrictions may apply. Customer may choose to, but is not required to, provide suggestions, data, or other information to SecondSight regarding possible improvements in the operation, functionality or use of Software, whether in the course of receiving services, evaluating Software or otherwise, and any inventions, product improvements, modifications or developments made by SecondSight, at its sole discretion, will be the exclusive property of SecondSight. This Section 2.2 shall survive termination or expiration of this Agreement.
2.3 Customer agrees that purchases under this Agreement are not contingent on the delivery of any future functionality or features, and are not dependent on any oral or written comments made by SecondSight regarding future functionality or features.
3.1 Customer may not use the Software for any purpose other than for use on its computers and networks, as specified in the Order. Customer may not loan, rent, lease, distribute, or otherwise transfer Software without SecondSight's prior written consent, except as part of a permanent transfer of the Software as permitted by this Agreement. Customer may copy Software only as reasonably necessary to support the authorized use. Each copy must include all notices and legends embedded in Software and affixed to its medium and container as received from SecondSight. All copies shall remain the property of SecondSight or its licensors. Customer shall maintain a record of the number and primary location of all copies of Software, including copies merged with other software, and shall make those records available to SecondSight upon request. Customer may allow third party consultants or contractors ("Authorized Third Party") to access and use the Software on Customer's behalf provided that: (a) the use is solely for Customer's internal business operations; (b) Authorized Third Party is bound by a written agreement with Customer protecting SecondSight's intellectual property and Confidential Information with terms no less stringent than this Agreement; (c) Customer ensures that such Authorized Third Party's use of the Software complies with the terms of this Agreement; and (d) upon completion of the Authorized Third Party's services requiring use of the Software, Customer ensures that the Software is immediately, completely and irretrievably uninstalled from Authorized Third Party's equipment and/or premises, as applicable. Under no circumstances shall Customer use Software or allow its use for the purpose of developing, enhancing or marketing any product that is in any way competitive with Software, or disclose to any third party the results of or information pertaining to any benchmark. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory local law, Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive any source code from Software.
3.2 Except as provided herein, Customer may not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it, whether by operation of law or otherwise ("attempted transfer"), without SecondSight's prior written consent and payment of SecondSight's then-current applicable transfer charges. Any attempted sublicense, assignment or transfer without SecondSight's prior written consent shall be a material breach of this Agreement and may, at SecondSight's option, result in the immediate termination of this Agreement and licenses granted under this Agreement. The terms of this Agreement, including without limitation the licensing and assignment provisions, shall be binding upon Customer's permitted successors in interest and assigns.
3.3 Notwithstanding Section 4.2 or the restrictions in any Order as described in Section 2.2, (a) at SecondSight's sole discretion, Customer may move the Software from one node (i.e. authorized hardware) to another without charge provided that, upon SecondSight's request, an officer of Customer certifies deletion and destruction of the Software on the original node location; and (b) Customer may change the site to another provided Customer notifies SecondSight in writing in advance and provided that Customer otherwise complies with this Agreement. In no circumstance shall a transfer under this section authorize the Customer to increase the value of, or number of nodes for which it is using, the Software.
3.4 Sections 4.1 and 4.2 shall survive the termination or expiration of this Agreement.
4. SUPPORT SERVICES. Any support services associated with the Software will be referenced in the Order. Support services are generally offered in one-year increments, unless otherwise expressly stated in the Order. To the extent Customer purchases support services for Software, SecondSight will provide Customer with Updates and Upgrades, if and when available, and technical support for the Software that are made generally available by SecondSight.
5. CONFIDENTIAL INFORMATION.
5.1 "Confidential Information" means: (a) byte code or source code provided by SecondSight; (b) any authorization keys and passwords delivered in order to operate the Software; (c) documentation, product road maps and development plans, and product pricing information; (d) any business, technical or training information of a party that, if disclosed in writing, is marked "confidential" or "proprietary" at the time of disclosure, or, if disclosed orally, is identified as "confidential" or "proprietary" at the time of disclosure; and (e) the specific business terms and pricing set forth in any quotation, Order or this Agreement. Confidential Information does not include information that: (i) is or becomes generally known or available to the public through no act or omission of Customer; (ii) is rightfully known to or received by Customer prior to receiving such information from SecondSight or its representatives without restriction as to use or disclosure; or (iii) is independently developed by Customer without use of Confidential Information and without a breach of this Agreement. The existence of this Agreement and the nature of the business relationship between the parties are not Confidential Information.
5.2 Customer will not use Confidential Information except as necessary to exercise the rights granted under this Agreement or to evaluate opportunities to license additional SecondSight product offerings. Customer will not disclose Confidential Information to any person or entity except to Customer's employees or Authorized Third Party, whose job performance requires access and who are under obligations of confidentiality. The foregoing obligations will not restrict Customer's disclosure of Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Customer gives reasonable notice to SecondSight to contest such order or requirement. Customer shall give SecondSight written notice of any unauthorized disclosure or use of the Software as soon as Customer learns or becomes aware of such unauthorized disclosure or use. This Section 6.2 shall survive termination or expiration of this Agreement.
6. LIMITED WARRANTY.
6.1 During the warranty period, SecondSight warrants that its standard, generally supported Software (excluding Beta Code), when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual. The warranty period is 90 days from the date of Customer's initial receipt of Software. Customer must notify SecondSight in writing of any nonconformity within the warranty period. This warranty applies only to the initial shipment of Software under the applicable Order and does not renew with the delivery of (a) Software Updates or Upgrades or (b) new or reissued authorization codes. This warranty shall not be valid if Software has been subject to misuse, modification or improper installation. SecondSight OFFERS NO WARRANTY THAT THE SOFTWARE WILL DETECT OR PROTECT AGAINST ALL THREATS OR BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. SecondSight'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY SHALL BE, AT SecondSight'S OPTION, EITHER (A) REFUND OF THE PRICE PAID UPON RETURN OF SOFTWARE TO SecondSight AND A CERTIFICATION THAT CUSTOMER HAS DESTROYED ALL COPIES OR (B) MODIFICATION OR REPLACEMENT OF SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY, PROVIDED CUSTOMER HAS OTHERWISE COMPLIED WITH THIS AGREEMENT. SecondSight OFFERS NO WARRANTIES WITH RESPECT TO: (A) SERVICES; (B) SOFTWARE WHICH IS LICENSED AT NO CHARGE; OR (C) BETA CODE; ALL OF WHICH ARE PROVIDED "AS IS."
6.2 SUBJECT TO SECTION 10.1, THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE EXCLUSIVE. NEITHER SecondSight NOR ITS LICENSORS OFFER ANY OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SOFTWARE OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. SecondSight AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, TERMS, CONDITIONS, AND REPRESENTATIONS OF (A) MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND (B) THOSE ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No oral or written information or advice given by SecondSight or SecondSight's authorized representatives shall create a warranty or other obligations on behalf of SecondSight. This Section 7.2 shall survive termination or expiration of this Agreement.
7. CUSTOMER OBLIGATIONS. Customer shall assume responsibility for selecting the Software to achieve its intended results, and for the installation of, use of, and results obtained from the Software. Customer agrees to indemnify SecondSight and its licensors from any claims, loss, cost, damage, expense or liability, including attorneys' fees, arising out of or in connection with Customer's failure to maintain a secure or compliant system. As conditions to Customer's obligations under this Section 8, SecondSight must: (a) notify Customer promptly in writing of the action; and (b) grant Customer sole authority and control of the defense or settlement of the action. This Section 8 shall survive the termination or expiration of this Agreement.
8.1 SecondSight will defend or settle any action brought against Customer by paying all costs, damages and reasonable attorneys' fees that are finally awarded against Customer to the extent those amounts are based upon a claim that the Software directly infringes any copyright or misappropriates any trade secret or infringes any U.S. patent. Customer agrees that as conditions to SecondSight's obligations under this Section 9, Customer must: (a) notify SecondSight promptly in writing of the action; (b) provide SecondSight all reasonable information and assistance to settle or defend the action; and (c) grant SecondSight sole authority and control of the defense or settlement of the action.
8.2 If a claim is made under Subsection 9.1, SecondSight may at its option and expense: (a) replace or modify Software so that it becomes non-infringing; or (b) procure for Customer the right to continue using Software; or (c) require the return of Software or, if obtained electronically, require a certification from Customer that the Software has been destroyed, and refund to Customer any license fee paid, less an allowance for use based on a five year straight line depreciation method beginning on the initial date of delivery of the Software.
8.3 SecondSight has no liability to Customer if the claim is based upon: (a) the combination of Software with any product not furnished by SecondSight; (b) the modification of Software other than by SecondSight or modifications made by SecondSight in conformance with Customer's specifications; (c) the use of other than a current unaltered release of Software; (d) any Beta Code or Software licensed at no charge; (e) any Software provided by SecondSight's licensors who do not provide such indemnification to SecondSight's customers; (f) Software not used in accordance with this Agreement; or (g) infringement by Customer that is deemed willful by a court of law. In the case of (g), Customer shall reimburse SecondSight for its reasonable attorney fees and other costs related to the action. SecondSight will not be responsible for any compromise made or expense incurred without its prior written consent.
8.4. THIS SECTION 9 SETS FORTH SECONDSIGHT'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. EXCEPT AS SET FORTH ABOVE, SECONDSIGHT AND ITS LICENSORS DISCLAIM ALL IMPLIED OBLIGATIONS WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION. THIS SECTION 9.4 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY
9.1 SecondSight's liability shall not be limited or excluded in relation to: (a) death or personal injury caused by its negligence or intentional misconduct (or that of its employees or agents); or (b) fraudulent misrepresentation; or (c) any other liability that cannot under applicable law be limited or excluded.
9.2 SUBJECT TO SECTION 10.1, IN NO EVENT SHALL SECONDSIGHT OR ITS LICENSORS BE LIABLE FOR: (A) LOSS OF PROFITS; (B) LOSS OF DATA; (C) LOSS OF REVENUE; (D) LOSS OF USE; OR (E) PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SecondSight OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 SUBJECT TO SECTIONS 10.1 AND 10.2, IN NO EVENT SHALL SECONDSIGHT'S OR ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED IN AGGREGATE, AN AMOUNT EQUAL TO THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, SECONDSIGHT AND ITS LICENSORS' DAMAGES SHALL BE CAPPED AT $1,000 USD.
9.4 Customer acknowledges that the fees reflect the allocation of risk set forth in this Agreement and that SecondSight would not enter into this Agreement without these limitations on its liability. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to the extent prohibited by such local laws.
9.5 This Section 10 shall survive termination or expiration of this Agreement.
10. TERM AND TERMINATION.
10.1 This Agreement remains effective until expiration or termination. This Agreement will immediately terminate upon notice if Customer exceeds the scope of license granted or otherwise fails to comply with Sections 2, 3, 4 or 6. For any other material breach under this Agreement, SecondSight may terminate this Agreement upon 30 days written notice if Customer is in material breach and fails to cure such breach within the 30 day notice period. If a Software license was provided for limited term use, such license will automatically terminate at the end of the authorized term. Customer may terminate this Agreement at any time by returning or certifying destruction of all copies of the Software used by Customer and providing written notice to SecondSight.
10.2 Upon termination of this Agreement or any Software license under this Agreement, Customer shall ensure that all use of the affected Software ceases, and shall return it to SecondSight or, if Customer obtained the Software electronically, certify the destruction of all copies of the Software used by Customer to SecondSight's reasonable satisfaction. Termination of this Agreement or any Software license granted under this Agreement will not affect Customer's obligation to pay for products shipped or licenses granted prior to the termination, which amounts shall immediately be payable at the date of termination.
11. U.S. GOVERNMENT LICENSE RIGHTS. All Software is commercial computer software within the meaning of the applicable acquisition regulations. Accordingly, pursuant to US FAR 48 CFR 12.212 and DFAR 48 CFR 227.7202, use, duplication and disclosure of the Software by or for the U.S. Government or a U.S. Government subcontractor is subject solely to the terms and conditions set forth in this Agreement, except for provisions which are contrary to applicable mandatory federal laws.
12. THIRD PARTY SOFTWARE. The Software may include software components under licenses from third parties. If any third party licenses require that SecondSight provide recipients with rights to use, copy or modify a software program that are broader than the rights granted in this Agreement, then such rights shall take precedence over the rights and conditions in this Agreement with regard to those components. Customer's use of third party components in conjunction with the Software in accordance with this Agreement is permitted under all such licenses.
13. EXPORT. Customer agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments, which prohibit export or diversion of certain products, and information about the products to certain countries and certain persons.
14. CONTROLLING LAW AND JURISDICTION. This Agreement shall be governed by and construed under the laws of the State of Oregon, USA, excluding choice of laws rules. Any action or proceeding arising from or relating to this Agreement, must be brought in a federal court in the District of Oregon or in state court in Multnomah County, Oregon, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. This Section 15 shall not restrict SecondSight's right to bring an action against Customer or its subsidiary in the jurisdiction where Customer's or its subsidiary's place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
15. SEVERABILITY.If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
16. REVIEW OF LICENSE USAGE. Upon SecondSight's written request, Customer will furnish to SecondSight: (a) a certification signed by an officer indicating whether the Software is being used in accordance with this Agreement; and (b) a copy of any usage reports generated from the Software, if applicable. With prior written notice, SecondSight may engage an independent auditor to review Customer's Software usage and related records during Customer's normal business hours to confirm compliance with this Agreement (a "Review"). Customer will provide the auditor with access to the relevant records and facilities for the Review. If the Review reveals Customer has underpaid fees to SecondSight, then Customer will promptly pay SecondSight for actual usage based on SecondSight's then-current list price. SecondSight will bear the expense of the Review unless a material non-compliance is revealed. SecondSight will treat all information disclosed during the Review as confidential information and will only use or disclose such information as required by law or to enforce its rights under this Agreement. This Section 16 will survive any termination or expiration of this Agreement.
17. MISCELLANEOUS.This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to Customer's legal department or to SecondSight.