Software as a Service Subscription License Agreement
Last updated: January 01, 2020
SOFTWARE AS A SERVICE SUBSCRIPTION LICENSE AGREEMENT FOR OCULAR3D SYSTEMS LLC SOFTWARE (ALL EDITIONS and VERSIONS)
IMPORTANT - READ CAREFULLY:
NOTE: IF YOU DO NOT HAVE A VALID SUBSCRIPTION LICENSE FOR ONE OF THE FOLLOWING SOFTWARE AS A SERVICE PRODUCTS (EACH A "SAAS SOFTWARE PRODUCT"), YOU ARE NOT AUTHORIZED TO INSTALL, COPY OR OTHERWISE USE THE SOFTWARE: O3DVP BASE PLATFORM, O3DVS VISION SOLVER AND O3DSR AUTOMOTIVE STUDY REPORTER
In consideration for your use of the Ocular3D software as a service, (“Software”) provided by Ocular3D Systems LLC (“Licensor”), by clicking “I accept the agreement”, you (“Subscriber”), acting as an authorized agent of the corporation, binds the corporation to the following terms and conditions. If you do not agree to these terms, you may not install the Software and you shall delete the Software immediately from your computer.
1. Subscription License: Licensor hereby grants the Subscriber a non-exclusive, non-transferable Software as a Service license for use of the Software for internal business and for a designated Subscription Period, as set forth in the term of a purchase order or other agreement by and between Licensor and Subscriber provided that Subscriber complies with the restrictions set forth herein, unless otherwise set forth in section 2. f.. hereof.
2. License Restrictions.
a. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Subscriber receives no title to or ownership of any copy or of the Software itself. Subscriber acknowledges that the Software and its structure, organization, and source code constitute valuable patents and trade secrets of Licensor. Accordingly, Subscriber agrees not to (i) copy, perform, disclose, distribute, modify, adapt, alter, translate, or create derivative works from the Software; (ii) merge the Software with other software; (iii) sublicense, lease, rent, or loan the Software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (v) otherwise use the Software except as expressly permitted by this Agreement.
b. Subscriber shall comply with all applicable export and import control laws and regulations in its use of the Software and, in particular, Subscriber shall not export or re-export the Software without all required United States and foreign government licenses. Subscriber understands that access and use of the Software from outside the United States may constitute export of technology and technical data which may implicate export regulations and/or require export license.
c. Licensor retains exclusive ownership of all worldwide copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Software and accompanying documentation, including any derivative works, modifications, updates, or enhancements. All rights in and to the Software not expressly granted to Subscriber in this Agreement are reserved by Licensor. Nothing in this Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license of any of Licensor’s intellectual property except as explicitly set forth herein.
d. The Software is a commercial item, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software. This Section does not grant Subscriber any rights not specifically set forth in this Agreement.
e. Subscriber shall not use the Software in any way that violates any local, state, federal or law of other nations, including but not limited to information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other computer crime regulations, etc. Licensor does not monitor or edit any transmissions, postings, routings or other materials which Subscriber may send, post, route, transmit or otherwise, create, move through or with the Software.
f. If the Software is provided to Subscriber in connection with a trial or evaluation, such trial version, if offered, (“Trial Versions”) of the Software is to be used for evaluation of the Software only and shall not be used for any other commercial or non-commercial purposes. In the event that the Software is provided for evaluation as contemplated by this Section, the Subscription Period shall be for the trial period agreed upon between Subscriber and Licensor. After the Subscription Period has expired, Subscriber shall buy Subscriber licenses for the Trial Versions Software or shall uninstall any and all Trial Version(s) of the Software.
3. WARRANTY DISCLAIMER.
IN NO EVENT SHALL LICENSOR BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING OUT OF THIS AGREEMENT OR SUBSCRIBER’S USE OF THE SOFTWARE ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF THIRD PARTY RIGHTS, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND ANY USE OF THE SOFTWARE IS AT SUBSCRIBER’S OWN RISK. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT AND WILL NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SOFTWARE. FURTHER, LICENSOR DOES NOT WARRANT THAT THE SOFTWARE (a) IS DEFECT OR ERROR FREE; (b) COMPLIES WITH GENERALLY ACCEPTED INDUSTRY STANDARDS; OR (c) IS FREE OF VIRUSES, TROJANS, MALWARE OR OTHER HARMFUL CODE.
4. LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, LOSS OF LIFE, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. LICENSOR’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $25,000. AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. SUBSCRIBER ACKNOWLEDGES THAT IN NO EVENT WILL LICENSOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
5. Indemnification. Subscriber shall defend, indemnify and hold harmless Licensor, its officers, directors contractors, agents and employees, from any and all claims or causes of action arising out of use of or related to the Software, and pay any and all damages and expenses (including but not limited to attorneys’ fees incurred by Licensor and/or third parties) in connection therewith. Licensor reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, in which event Subscriber shall cooperate with the Licensor in asserting any available defenses.
6. Termination. This Agreement is effective until terminated by either party as set forth herein. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Licensor may terminate this Agreement immediately upon breach by Subscriber as set forth in the terms of a purchase order or other agreement between Licensor and Subscriber. Upon termination of this Agreement, Subscriber shall cease all use of the Software and delete, destroy, or return all copies of the Software, in its possession or control. Sections 2, 3, 4, 5, 8 and 9 shall survive the termination of this Agreement and the end of the Subscription Period.
7. Legal Compliance. At Licensor’s sole discretion, Licensor may suspend or terminate use of Software and this Agreement immediately upon receipt of any notice which alleges that Subscriber has used the Software for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the Subscriber’s identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for damages or results thereof and Subscriber agrees not to bring any action or claim against this Licensor for such disclosure.
8. Authority. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
9. Miscellaneous. Subscriber may not assign this Agreement. Notwithstanding the foregoing, provided that Subscriber has obtained Licensor’s express written consent, Subscriber may assign this Agreement to an acquirer or successor in interest in connection with (1) a sale of all or substantially all the assets of Subscriber; (2) any merger, consolidation or acquisition of Subscriber with, by or into another legal entity; or (3) the change in the ownership of more than fifty percent (50%) of the voting securities of Subscriber in one or more transactions. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon all successors, assigns and Licensor. This Agreement and any dispute arising hereunder shall be construed in accordance with the laws of the State of Michigan without regard to principles of conflict of laws. For the purpose of this Agreement, Subscriber consents to the personal jurisdiction and venue of the state and federal courts located in Oakland County, Michigan. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Software and shall not be changed except by written agreement signed by an officer of Licensor.
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