Ding Dang Viewer is based on AR-media Player, property of Inglobe Technologies s.r.l., thus the following License terms apply to Ding Dang Viewer as well.
End User Licensing Agreement (“EULA”) for the AR-media Player App
Copyright © 2021 Inglobe Technologies Srl
This EULA constitutes a binding legal agreement between you, the end user (referred to herein by the words “you”, “your”, “yours”, and their derivatives) and Inglobe Technologies Srl (referred to herein as the “Company” or with words such as “we”, “us”, “our” and their derivatives). You and Company hereinafter jointly referred to as “parties”.
The product subject to this license is referred to herein as “AR-media Player App”. The terms contained in this EULA (“Terms”) govern your right to obtain access and make use of our AR-media Player App and/ or accessing or using any content or information provided by or in the AR-media Player App.
- DESCRIPTION OF THE APPLICATION.
“AR-media Player App” refers to Inglobe Technologies augmented reality software application, which an end user may download to a compatible electronic device, such as a smartphone, tablet computer or smartglass (“Device”). The AR-media Player App contains content delivered by servers (“Inglobe cloud”, hosted and managed by us, through which we manage and store Third Party Content, as defined in Section 5 herein, or by servers installed in customer premises) and any other information and data (“Content”) that is to be delivered to the Device based on the location of each user, place or thing recognized by the AR-media Player App.
- LICENSE GRANT.
Subject to the Terms contained herein, we grant you a personal, revocable, worldwide, non-sublicensable, non-transferable, non-exclusive, non-assignable, royalty free, single user license, to(a) download and install 1 (one) copy of the AR-media Player App to your Device, and (b) access, perform, display and use the AR-media Player App on your Device.
You may not: (a) copy, modify or distribute the AR-media Player App for any purpose; (b) transfer, sublicense, lease, sell, lend, rent or otherwise distribute the AR-media Player App to any third party; (c) decompile, reverse-engineer, disassemble, or create derivative works of the AR-media Player App; (d) make any features or functionalities of the AR-media Player App available to multiple users through any means; or (e) use the AR-media Player App in any illegal manner, for any illegal purpose, or in any manner inconsistent with or in violation of these Terms.
- THIRD PARTY CONTENT.
“Third Party Content” means any third party text, images, audio, video, any other content and data and, links to third party data, websites, resources, products, offerings, and services that we display in the AR-media Player App through the AR-media/Inglobe cloud. We assume no responsibility for Third Party Content, and you agree to use or access any Third Party Content at your sole responsibility and to assume all risk. Company shall not be held liable for (a) the availability, accuracy, quality, or reliability of any Third Party Content; or (b) the information, products or services available through or on that Third Party Content.
Company is the sole and exclusive owner of all rights, title and interest in and to the AR-media Player App, including but not limited to all copyrights, trademarks, patent rights and all other intellectual property rights therein or related thereto. Any rights not expressly granted to you herein are hereby reserved by Company. You may not alter, remove or obscure any copyright, trademark or any other proprietary rights notices incorporated into the AR-media Player App.
“Feedback” includes, without limitation, suggestions, comments, ideas or know how about the AR-media Player App in direct connection with your testing, evaluation and/or use (whether presented orally, in written form or otherwise) of the AR-media Player App. You acknowledge and agree that any Feedback you may provide the Company, with regards to the AR-media Player App, shall be Company’s sole and exclusive property, and you hereby irrevocably assign to Company all of your rights, title and interests in and to all Feedback.
The license granted herein is effective until terminated by either party. You may terminate this EULA by ceasing your use of and deleting the AR-media Player App from your Device. Company may suspend, terminate or disable your access to the AR-media Player App and related Services at any time, at Company’s sole discretion and without prior notice to you (unless differently agreed in a separate agreement). Company will not be liable to you or any third party for terminating your access or use of the AR-media Player App. Suspension or termination will not affect any of your obligations under this EULA (including, but not limited to, ownership, confidentiality, indemnification and limitation of liability sections). Upon termination of this EULA, you shall cease all use and delete all copies of the AR-media Player App.
- WARRANTIES AND LIMITATION OF LIABILITY.
AS PERMITTED BY LAW, COMPANY DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. COMPANY IMAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK. [ADDITIONAL WARRANTIES CAN BE EXPRESSED OR IMPLIED UNDER SPECIFIC CUSTOMIZATIONS]
You agree to indemnify, defend and hold Company, its subsidiaries and affiliates and each of its respective officers, directors and employees harmless from and against any and all claims, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred or otherwise suffered by Company (including but not limited to attorney’s fees) arising out of, resulting from or in connection with your access to or use of the AR-media Player App and Services and/or for any breach or violation of the Terms of this EULA.
You agree to hold in confidence and not use or disclose any materials or information disclosed by us that are confidential or proprietary (“Confidential Information”). You shall treat all Confidential Information with at least the same degree of care you use to prevent unauthorized disclosure or use of your own Confidential Information, but in no event less than reasonable care. Confidential Information will not include information that: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on your behalf, (ii) is expressly revealed by Company on a non-confidential basis, (iii) was known by you prior to receiving such information, or (iv) is rightfully acquired by you from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure (v) is independently developed by you without breach of any of these Terms (vi) is disclosed in response to a valid order of a court or other governmental body. The burden of proof for the existence of any of the above exceptions shall be borne by you.
- THIRD PARTY SOFTWARE. The AR-media Player App may use or be integrated by third party software, which requires additional terms and conditions. Such third party software additional terms and conditions, listed and identified in the final part of this document, are part of and incorporated into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions set forth herein. Company will not warranty, indemnify or otherwise be held liable for any third party software.
- ENTIRE AGREEMENT.
No failure to exercise, nor any delay in exercising, on the part of Company, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further exercise thereof or the exercise of any other right or remedy. The waiver by Company of any breach shall not be deemed a waiver of any subsequent breach of the same or any other Term of this EULA.
If any provision of this EULA shall be held or become invalid, this shall not prejudice the validity of the other provisions of this EULA. Both parties agree on replacing the invalid provision with a valid provision, which most closely approximates to the commercial objective of the parties. The same applies to eventual loopholes in this EULA.
Any modification or amendment to this EULA must be made in writing to become effective. Verbal ancillary agreements are deemed not to exist. You may not assign or transfer the EULA, the license granted hereunder, or any other rights or obligations herein, without our prior written consent. Any attempts to assign or transfer in violation of the foregoing will be void. This EULA is subject exclusively to the substantive law of the Republic of Italy with the exception of the UN Convention on Contracts for the International Sales of Goods. The place of performance shall be the corporate seat of Company in Rome, Italy. The parties agree that the regional court of Rome shall have exclusive jurisdiction for any disputes arising out of or in connection with this EULA. Company is entitled to sue you at any other legal place of jurisdiction. Any notices, comments, questions or complaints regarding the AR-media Player App should be sent to:
Inglobe Technologies Srl
Via Giacomo Matteotti 103, 03023 Ceccano, Italy
List of Third Party Software and License Terms:
—- AR-media SDK —-
AR-media SDK – END USER LICENSE AGREEMENT
This License Agreement (the “Agreement”) is a legal agreement between you (also referred to as “You”, “Customer” or “Licensee”) and Inglobe Technologies a corporation formed under the laws of Italy, with its principal place of business at via Giacomo Matteotti 103, 03023 Ceccano, Italy (“Licensor”). Licensor and Licensee agree that the provisions of the Agreement apply to the license of the Licensed Products (as hereinafter defined) under this Agreement.
“Licensed Software” shall mean those computer software programs that are offered for License by the Licensor and include AR-media SDK, AR-media SDK Plugins, AR-media SDK Utilities, AR-media Cloud based services.
“Documentation” shall mean all user guides, manuals and associated documentation made available to Licensee for use solely in connection with the Licensed Software.
“Source” form shall mean the preferred form for making modifications, including but not limited to software source code, Documentation source, and configuration files.
“Object” form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated Documentation, and conversions to other media types.
“Upgrade” shall mean any version of the Licensed Software that, in Licensor’s sole but reasonable discretion, provides new or additional features or functionality, or makes use of different architecture.
“Licensed Products” Includes all Licensed Software and Documentation, whether in Source and Object form, along with all Upgrades thereto, from time to time provided by Licensor to Licensee pursuant to this Agreement.
“Single Product” Software or other product which is offered for separate sale or giveaway by Licensee, and which is capable of use, operation, or performance separately from any other software or other product of Licensee’s. In the case of networked software, which includes a portion that executes on a system controlled by Licensee and a portion that executes on a client machine not controlled by Licensee (e.g. “client-server” or “peer-to-peer” software), this definition includes the combined product formed by the connected portions.
- License Grant
(a) Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable right and license to install, use, and execute for its own benefit the Licensed Software in Object form, and sublicense to incorporate the Licensed Software in Object form into other software or products produced by Licensee. The sublicense granted to any recipient of Licensee’s software or other products will be limited to a non-exclusive, non-sublicensable, non-transferable license to install, use and execute the Licensed Software in Object form exclusively in conjunction with a Single Product of Licensee’s. Any such sublicense will be granted subject to the terms and conditions of this Agreement.
(b) Licensee acknowledges that the Licensed Software and its structure, organization and source code constitute valuable trade secrets of Licensor and its suppliers. Licensee agrees not to: (i) make any copies of the Licensed Software for any person (except as expressly permitted in Section 2(a)); (ii) where the applicable Licensed Software has been provided only in Object Form, de-compile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, by any means whatsoever, any source code, algorithms or file formats or programming or interoperability interfaces of the Licensed Software or of any files contained or generated using the Licensed Software; (iii) remove any product identification, trademark, copyright, confidentiality, proprietary or other notices contained on or within the Licensed Software; (iv) except as expressly provided for elsewhere in this agreement, modify or create any derivative works from the Licensed Software or any part thereof (except to the extent that the Licensed Software provides for user-modifiable components) or separate the Licensed Software into its component parts; (v) disclose to any third party any performance information or analysis (including, without limitation, benchmarks) of the Licensed Software except as otherwise expressly contemplated herein (provided that, nothing contained in this Agreement shall prevent the Licensee or any of its subsidiaries or franchisees from using any of the data produced by the Licensed Software for its own business purposes); (vi) use the Licensed Software for any purpose or in any manner not expressly permitted in this Agreement; or (vii) permit or encourage any third party to do any of the foregoing. Licensee shall permit Licensor, at all reasonable times, and at Licensor’s expense, to verify that the use of Licensed Software is within the terms of this Agreement.
Except where a perpetual license has been purchased, the term of this Agreement shall extend for the duration of the selected subscription plan (out of the subscription plans available on the AR-media SDK customer portal) starting from the Effective Date, unless earlier terminated in accordance with Section 12. During the subscription term Licensee can generate as many license keys and applications as desired. Licensee may offer for sale or giveaway the product incorporating the Licensed Software only while Licensee is not in default under this Agreement and this Agreement has not terminated or expired. The terms of this Agreement will remain in full force and effect to the extent and for the period necessary to govern any sublicenses
that exist at the time of the termination or expiration of the license granted to Licensee under this Agreement.
- Installation and Acceptance
(a) Licensee shall be solely responsible for installing the Licensed Software, along with acquiring and installing computer hardware and the appropriate operating environment to enable authorized users to access the Licensed Software.
(b) Absent prior written notice to the contrary, each Licensed Software module shall be deemed to have been accepted by Licensee following installation.
- Maintenance and Upgrades
(a) Support and maintenance for the Licensed Products are only offered on the AR-media Forum and Helpdesk.
(b) Licensee is entitled to receive all the version updates released during the subscription period. Licensee acknowledges that it shall not be entitled to receive Updates/Upgrades to the Licensed Software after the term of this agreement. In the event that Licensor has developed or develops any Upgrades to the Licensed Software during the term of this Agreement, Licensee will receive access to such Upgrades without the need of paying additional upgrade fees (“Upgrade Fee”).
(c) After the subscription term Licensee can decide to renew the license of the Licensed Software by purchasing another subscription plan by paying the selected subscription fee.
- License Fees and Payment
(a) In accordance with the terms and conditions of this Agreement, (i) Licensee shall pay to Licensor a fee based on the selected subscription plan for the AR-media Cloud based services, and in the case where subsequent renewals of this agreement occur, on any time that is convenient for Licensee (there is no automatic money withdrawal); (ii) all reasonable Licensee-approved travel and out-of-pocket expenses incurred by Licensor to fulfill its obligations towards Licensee under this Agreement. Each subscription plan has a time limit and must be renewed once the limit is reached in order to keep using the software. The license fee corresponding to each selected subscription plan gives Licensee the right to generate as many application keys and datasets as required during the subscription period.
(b) The License Fees exclude all applicable sales, use and other taxes, and Licensee will be responsible for payment of all such taxes (other than taxes based on Licensor’s income), and any related penalties and interest, arising from the payment of such Fees or the delivery or license of the Licensed Products to Licensee.
(c) There is no obligation to renew the subscription once the subscription period has ended.
(a) As between the parties, all right, title and interest in and to the Licensed Products, together with the media on which the same are furnished to Licensee, and all copyrights, patents, trademarks, service marks and algorithms, know-how or other intellectual property or proprietary rights relating thereto, are and shall remain the property of Licensor. No right, title or interest in such intellectual property and property rights is granted to Licensee under this Agreement. Licensee is granted only the limited rights as set forth herein, which rights are subject to termination in accordance with Section 12 of this Agreement.
(b) All right, title and interest in and to the data derived from the Licensee are and shall remain the property of the Licensee.
(c) Prior to disposing of any media or apparatus, Licensee shall ensure that any Licensed Products contained on such media or stored in such apparatus has been completely deleted or otherwise destroyed.
- Proprietary Information, Confidentiality and Non-Disclosure
(a) Proprietary Information. Each of the parties hereto acknowledges that, in the course of performing its respective obligations hereunder, it shall receive information that is proprietary and confidential to the disclosing party and that the disclosing party wishes to protect from public disclosure (“Proprietary Information”). Proprietary Information as used herein includes, without limitation, all non-public information disclosed to Licensee at any time prior to or following the execution of this Agreement relating to the Licensed Products (including, without limitation, the Licensed Products, along with any specifications, designs, techniques or processes used in creating the Licensed Products); and any other written confidential information or trade secret that has been or may be disclosed between the parties relating to their respective businesses, customers, products, marketing and sales plans, financial status, product development plans, strategies and the like which has been marked with the term “Proprietary Information” by the disclosing party.
(b) Restrictive Use Conditions. Each of the parties hereto (i) shall hold all Proprietary Information in confidence and not disclose it, except to its employees or representatives to whom disclosure is necessary to effect the purposes of this Agreement and who are similarly bound to hold the Proprietary Information in confidence; (ii) shall use its reasonable best efforts to prevent inadvertent or unauthorized disclosure, publication or dissemination of any Proprietary Information, it being agreed that treatment in a manner similar to Licensee’s other proprietary information shall constitute compliance herewith; and (iii) shall not make any use of any Proprietary Information nor circulate Proprietary Information within its organization, except to the extent necessary to carry out the intent of this Agreement. Both parties agree that they shall not disclose Proprietary Information to any third party except with the other party’s prior written consent.
(c) Exceptions. Nothing in this Agreement shall be interpreted as placing any obligation of confidence and non-use on a party with respect to any Proprietary Information that (i) has been in the public domain as of the effective date of this Agreement or which comes into the public domain during the term of this Agreement through no fault of such party; (ii) has been independently developed by such party; or (iii) is rightfully received by such party from a third party not under any known obligation of confidence to the other party with respect thereto.
- Warranty and Disclaimer
(a) Licensor represents and warrants that the Licensed Software is free from material defects at the time of delivery and that it complies with the product specifications as described in the accompanying documentation Licensee shall immediately notify Licensor in writing of any material defect that may occur, specifying how the material defect manifests itself, what effect it has, under what circumstances it occurs, and how it is to be classified by Licensee.
(b) Provided that Licensor, having received notification of the material defect, has established that a material defect actually exists, it will, at its option, remedy such material defect (subsequent improvement or subsequent delivery) within a reasonable period of time. If an attempt to remedy the material defect is not successful within this period of time, and if such an attempt also fails within a further reasonable time limit to be set by the Licensee, and if, furthermore, Licensor does not provide an interim solution, then the Customer can reduce (lower) the license fee or cancel the Agreement. Nothing of the aforesaid shall prejudice any claim for damages of the Licensee. If any notified material defect cannot be ascribed to Licensor, then the Licensee shall compensate Licensor for the time spent, as well as for the accrued costs (in particular travel expenses), in each case at the applicable rate.
(c) Licensor is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Licensed Software is procured, nor is Licensor responsible for problems which occur as a result of the use of the Licensed Software in conjunction with the software of third parties or with hardware which is incompatible with the operating system for which the Licensed Software is being procured.
(D) OTHER THAN AS SPECIFICALLY PROVIDED IN SECTION 9(A) AND 9(B), THE LICENSED PRODUCTS, MAINTENANCE, AS WELL AS INSTALLATION AND TRAINING SERVICES, ARE PROVIDED “AS IS”, AND LICENSOR AND ITS SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE LICENSED PRODUCTS, MAINTENANCE, AS WELL AS INSTALLATION OR TRAINING SERVICES, WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED PRODUCTS IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. LICENSEE UNDERSTANDS THAT LICENSOR IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR NETWORK FAILURE OR HARDWARE, SOFTWARE OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OR ENTITIES OTHER THAN LICENSOR.
- Limitation of Remedies, Liabilities and Indemnity
(a) IN NO EVENT SHALL LICENSOR BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE INSTALLATION, USE, OPERATION OR SUPPORT OF THE LICENSED SOFTWARE OR ANY UPGRADE OF THE LICENSED SOFTWARE, EVEN IF THE PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Licensor shall defend on Licensee’s behalf and pay on Licensee’s behalf any settlements or damages finally awarded to a third party as a result of any claim by such third party arising out of or relating to any actual or alleged infringement of any patent or copyright by, or misappropriation of any trade secret of any third party by the Licensed Software, provided, that Licensee gives Licensor prompt written notice of the claim, authorizes Licensor to control the defense and settlement of the claim, provides such assistance in connection with the defense and settlement of the claim as Licensor may reasonably request, does not settle or compromise the claim without the prior written consent of Licensor and complies with any settlement or court order made in connection with the claim. In no event shall Licensee settle any such claim, lawsuit, or proceeding without Licensor’s prior written approval. Licensor shall have no liability for any claim under this section if a claim for a copyright infringement is based on the use of a superseded or altered version of the Licensed Software if such infringement would have been avoided by use of the latest unaltered version of the Licensed Software available as an Upgrade, or in the event such claim is based upon any modification or enhancement to the Licensed Software made by anyone other than Licensor. In the event a third party infringement claim is sustained in a final judgment from which no further appeal is taken or possible, or if Licensee’s use of the Licensed Software is enjoined by a court, then Licensor shall, in its sole election and at its expense either (i) procure for Licensee the right to continue to use the Licensed Software pursuant to this Agreement; (ii) replace or modify the Licensed Software to make it non-infringing; or (iii) terminate this Agreement and refund to Licensee the unamortized value of the Licensed Software, on a straight line basis over a period of five (5) years. Licensor shall have no other liability or obligation to Licensee for infringement indemnity except as expressly set forth above. If a third party infringement claim is based on any modification, enhancement, derivative work or other change or integration of the Licensed Software made by Licensee, Licensee shall defend and hold harmless Licensor against any liabilities arising from any such claim, lawsuit or proceeding.
(C) EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10(B), LICENSEE SPECIFICALLY AGREES THAT ANY LIABILITY ON THE PART OF LICENSOR ARISING FROM ANY BREACH OF THIS AGREEMENT (WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY) SHALL NOT EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR AT THE TIME SUCH CLAIM AROSE. IN ADDITION, LICENSEE SPECIFICALLY AGREES THAT ANY LIABILITY ON THE PART OF LICENSOR ARISING FROM LICENSOR’S OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED A SUM EQUAL TO TWO (2) TIMES THE AGGREGATE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR AT THE TIME SUCH CLAIM AROSE.
- Public Relations
As part of its obligations under this Agreement, Licensee agrees to (i) act as a reference for Licensor; (ii) provide Licensor with such information as Licensor shall reasonably request with respect to the costs and benefits to Licensee’s business of using the Licensed Software, provided that, Licensor shall not be permitted to disseminate any such information to third parties without the express consent of the Licensee; (iii) permit Licensor to use Licensee as a case study in its marketing efforts to potential licensees and third parties (solely with Licensee’s prior written consent); and (iv) release jointly-approved press releases from time to time regarding the nature and existence of this Agreement.
- Default and Termination/Expiration
(a) Except as otherwise set-forth, in the event that either party defaults in any material obligation under this Agreement, the non-defaulting party shall give written notice of such default to the defaulting party, and, if the defaulting party has not cured the default within forty-five (45) days following receipt of such notice, the non-defaulting party shall have the right to terminate this Agreement provided that, if there is a reasonable dispute among the parties as to whether a default exists under this Agreement or whether a default has been cured, then both parties agree to the following procedure:
(i) A meeting (telephonic or in-person) shall be held promptly, (within 14 days) between the parties, attended by individuals with decision-making authority regarding the default, to attempt in good faith to negotiate a resolution of the disputed default.
(ii) If, within 30 days after such meeting, the parties have not succeeded in negotiating a resolution of the disputed default, they agree to submit the dispute to mediation in accordance with the commercial Mediation Rules of the Tribunale di Latina, Italy.
(iii) The parties will jointly appoint a mutually acceptable mediator, seeking assistance in such regard from the Tribunale di Roma if they have been unable to agree upon such appointment within 15 days from the conclusion of the negotiation period.
(iv) The parties agree to participate in good faith in the mediation and negotiations related thereto in an expeditious manner.
The parties will accept the determination of such mediator as a binding resolution of the disputed default. In the case of any such dispute, neither party shall have the right to terminate the Agreement until such final determination has been rendered.
(b) Effective with the date of any termination or expiration of this Agreement all rights of Licensee under this Agreement shall terminate. Notwithstanding any termination of this Agreement, the following shall apply:
(i) The provisions of Sections 7 (Ownership), 8 (Proprietary Information), 9 (Warranty Disclaimer), 10 (Limitation of Remedies, Liabilities and Indemnity), 13 (Injunctive Relief), and 14 (Miscellaneous) shall survive any termination or expiration of this Agreement. Any termination or expiration of this Agreement shall not relieve Licensee of its (a) obligations to make all accrued payments through the date of termination or expiration and (b) any liability on account of breach of any provision of this Agreement arising prior to or following the effective date of termination or expiration.
(ii) Within ten (10) days following any termination or expiration of this Agreement, Licensee shall return or, at Licensor’s request, destroy all Licensor Proprietary Information and Licensed Products, all copies thereof, all documents, notes, and other materials related to the same in Licensee’s possession, together with written certification by an authorized officer of Licensee that the original and all copies of such materials, including unauthorized copies, modifications and other related materials, are no longer in use and have been returned to Licensor or destroyed. Within ten (10) days following any termination or expiration of this Agreement, Licensor shall return or, at Licensee’s request, destroy all Licensee Proprietary Information, all copies thereof, all documents, notes, and other materials related to the such information in Licensor’s possession, together with written certification by an authorized officer of Licensor that the original and all copies of Licensee’s Proprietary Information, including unauthorized copies, modifications and other related materials, are no longer in use and have been returned to Licensee or destroyed.
(c) Termination of the Agreement under this Section shall be in addition to, and not constitute an election of remedies or a waiver of, any remedy at law or in equity available to either party as a result of a breach of this Agreement.
- Injunctive Relief
Notwithstanding the provisions of Section 12, since any unauthorized use, copying or other transfer of the Licensed Products or any other Proprietary Information shall diminish substantially the value to Licensor of the trade secrets and proprietary rights that are the subject of this Agreement, if Licensee breaches any of its material obligations with respect to the use, nontransferability or confidentiality of the Licensed Products or any other Proprietary Information, Licensor shall be entitled to obtain equitable relief, without bond, to protect its interests therein, including without limitation, injunctive relief, as well as monetary damages. Notwithstanding the provisions of Section 12, if Licensor breaches any of its material obligations with respect to the confidentiality of Proprietary Information, Licensee shall be entitled to obtain equitable relief, without bond, to protect its interests therein, including without limitation, injunctive relief, as well as monetary damages. Licensor and Licensee hereby acknowledge that remedies other than equitable relief are inadequate to fully protect Licensor’s and Licensee’s rights. The rights and remedies set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law.
(a) This Agreement shall be the complete and exclusive statement of the agreement between the parties which supersede and merge all prior proposals, understandings and other agreements, oral and written, between the parties relating to the subject matter of this Agreement, including without limitation the terms of any Licensee request for proposal or Licensor response or the standard printed terms on any purchase order or other form provided by Licensee. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
(b) All notices shall be in writing and shall be deemed to have been duly given on the day of service if served personally or by facsimile transmission with confirmation, or five (5) days after mailing if mailed by registered or certified mail, postage prepaid, and addressed to the respective parties at the addresses set forth in the first paragraph of this Agreement, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this paragraph.
(c) Subject to the dispute resolution provisions set forth in Section 12(a), each of the parties, (i) submits to the exclusive jurisdiction of any state or federal court setting in Seattle, Washington, in any action or proceeding arising out of or relating to this Agreement, (ii) agrees that all claims in respect of the action or proceeding may be heard and determined in any such court, and (iii) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court or in any other jurisdiction. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any party may effect service on the other party by sending or delivering a copy of the process to the party to be served at the address set forth in the first paragraph of this Agreement by registered or certified mail. Nothing in this Section shall affect the right of any party to serve legal process in any other manner permitted by law. This Agreement and performance under this Agreement shall be governed by the laws of the State of Washington, excluding application of its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and shall not apply to this Agreement. Attorney fees and costs shall be awarded to the prevailing party.
(d) If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
(e) Except as provided herein, Licensee must not assign this Agreement or any rights or obligations hereunder, or sub-license the Licensed Software to any person or entity, in whole or in part, provided, however, that this Agreement may be assigned by Licensee without the consent of Licensor to a purchaser of all or substantially all of the assets or outstanding capital stock of Licensee, or its parent corporation or other corporation controlled by its parent corporation, whether by merger, consolidation or otherwise. Any authorized transferee or assignee of the Licensed Software or this Agreement shall be bound by and subject to all of the terms and provisions of this Agreement. Except as stated above, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. In the event that Licensee institutes bankruptcy or similar proceedings, and/or has bankruptcy similar proceedings instituted against it, all attempted assignments of this Agreement shall be void unless Licensee has obtained Licensor’s prior written consent.
(f) The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
(g) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and each of which together shall constitute a single instrument, or in electronic form whereby Licensor shall indicate offer of these terms by posting this agreement to an electronic form secured by password and accessible only by Licensee, and Licensee shall indicate acceptance by clicking a clearly labeled button on such form. In the case of electronic acceptance, Licensor shall record precise date, time and Internet Protocol address of such action to allow verification of electronic acceptance by Licensee.
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————– OpenSceneGraph Public License, Version 0.0 ————-
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