End-User License Agreement
This software license agreement (“Agreement”) is a legal agreement between you (either an individual and/or entity) and LineStream Technologies, Inc. (“LineStream”). The “Licensed Materials” subject to this Agreement include the LineStream proprietary software programs LineStream has granted you access to download and any “on-line” or electronic documentation associated with these programs, or any portion thereof, and may also include reference code and associated documentation. The version of the Licensed Materials that are being provided to you are designed and licensed for limited use with the specific hardware platform that LineStream, or LineStream’s authorized partner, has sold to you or to which you have otherwise been granted authorized access (“Licensed Devices”). By installing, copying or otherwise using the Licensed Materials you agree to abide by the provisions set forth in this Agreement, and the “Effective Date” shall be considered the day upon which you evidence your consent, either expressly or implied through such use. This Agreement is displayed for you to read prior to downloading and using the Licensed Materials. If you choose not to accept or agree with these provisions, do not download or install the Licensed Materials.
1. Delivery. LineStream may deliver the Licensed Materials, or portions thereof, to you electronically.
2. License Grant and Use Restrictions.
a. Limited Source Code License. Subject to the terms of this Agreement, and commencing as of the Effective Date and continuing for the term of this Agreement, LineStream hereby grants to you a limited, paid-up, non-transferable, non-exclusive, non-assignable, non-sub-licensable license to make copies, prepare derivative works, display internally and use internally the Licensed Materials provided to you in source code for the sole purposes of designing and developing object and executable versions of such Licensed Materials or any derivative thereof, that execute on Licensed Devices used in Customer Product(s), and maintaining and supporting such Licensed Materials, or any derivative thereof, and Customer Product(s). “Customer Product” means a final product distributed by or for you that consists of both hardware, including one or more Licensed Devices, and software components, including only executable versions of the Licensed Materials that execute on or with such Licensed Devices.
b. Production and Distribution License. Subject to the terms of this Agreement, and commencing as of the Effective Date and continuing for the term of this Agreement, LineStream hereby grants to you a paid-up, non-exclusive, non-transferable, non-assignable, worldwide license to:
(i) Use object code versions of the Licensed Materials, or any derivative thereof, to make copies, display internally, evaluate, test, distribute internally and use internally for the sole purposes of designing and developing Customer Product(s), and maintaining and supporting the Licensed Materials and Customer Product(s);
(ii) Make copies, use, sell, offer to sell, and otherwise distribute object code and executable versions of the Licensed Materials, or any derivative thereof, for use in or with Customer Product(s), provided that such Licensed Materials are embedded in or only used with Customer Product(s), and provided further that such Licensed Materials execute on a Licensed Device.
c. Demonstration License. Subject to the terms of this Agreement, and commencing as of the Effective Date and continuing for the term of this Agreement, LineStream grants to you a free, non-transferable, non-exclusive, non-assignable, non-sub-licensable worldwide license to demonstrate to third parties the Licensed Materials as they are used in Customer Products executing on Licensed Devices, provided that such Licensed Materials are demonstrated in object or executable versions only.
d. Reference Design Use License. Subject to the terms of this Agreement, and commencing as of the Effective Date and continuing for the term of this Agreement, LineStream hereby grants to you a paid-up, non-transferable, non-exclusive, non-assignable, non-sub-licensable worldwide license to:
(i) Use the Licensed Materials to design, develop, manufacture or have manufactured, sell, offer to sell, or otherwise distribute Customer Product(s) or product designs, including portions or derivatives of the Licensed Materials as they are incorporated in or used with Customer Product(s), provided such Customer Products or product designs utilize a Licensed Device.
e. Limited Tools License. Subject to the terms of this Agreement, and commencing as of the Effective Date and continuing for the term of this Agreement, LineStream hereby grants to you a free, non-exclusive, non-transferable, non-assignable, royalty-free, non-sub-licensable worldwide license to:
(i) Use the Licensed Materials to generate applications that execute with systems containing Licensed Devices. Without additional license grants from LineStream, you may not use the Licensed Materials to assist in the design, development or verification of a device that is not a Licensed Device. Use of the Licensed Materials to assist in the design, development or verification of a device that is not a Licensed Device is a material breach of this Agreement.
(ii) The Licensed Materials may include software programs in an object code format that are designed specifically for use with Licensed Devices in target applications. LineStream grants to you a license to reproduce, test and evaluate such programs solely for use with Licensed Devices. The Licensed Materials may also include libraries and applications software in source code form. You may use these programs to create modified or derivative programs that in source code form remain subject to the restrictions set forth in Section 2.a., above, but that in object code form may be reproduced, tested, distributed, and evaluated by you for use with Licensed Devices.
f. Contractors and Suppliers. The licenses granted to you hereunder shall include your on-site and off-site suppliers and independent contractors, while such suppliers and independent contractors are performing work for or providing services to you, provided that such suppliers and independent contractors have executed work-for-hire agreements with you containing terms and conditions not inconsistent with the terms and conditions set forth is this Agreement and provided further that such contractors may provide work product to only you under such work-for-hire agreements.
g. No Other License. Notwithstanding anything to the contrary, nothing in this Agreement shall be construed as a license to any intellectual property rights of LineStream other than those rights embodied in the Licensed Materials provided to you by LineStream. EXCEPT AS PROVIDED HEREIN, NO OTHER LICENSE, EXPRESS OR IMPLIED, BY ESTOPPEL OR OTHERWISE, TO ANY OTHER LINESTREAM INTELLECTUAL PROPERTY RIGHTS IS GRANTED HEREIN.
h. Restrictions. Except as expressly provided in this Agreement, you shall not copy, publish, disclose, display, provide, transfer or make available the Licensed Materials to any third party and you shall not sublicense, transfer, or assign the Licensed Materials or your rights under this Agreement to any third party. You shall not mortgage, pledge or encumber the Licensed Materials in any way. You shall not (i) incorporate, combine, or distribute the Licensed Materials, or any derivative thereof, with any Public Software, or (ii) use Public Software in the development of any derivatives of the Licensed Materials, each in such a way that would cause the Licensed Materials, or any derivative thereof, to be subject to all or part of the license obligations or other intellectual property related terms with respect to such Public Software, including but not limited to, the obligations that the Licensed Materials, or any derivative thereof, incorporated into, combined, or distributed with such Public Software (x) be disclosed or distributed in source code form, be licensed for the purpose of making derivatives of such software, or be redistributed free of charge, contrary to the terms and conditions of this Agreement, or (y) be otherwise used or distributed in a manner contrary to the terms and conditions of this Agreement. As used in this Section 2(g), “Public Software” means any software that contains, or is derived in whole or in part from, any software distributed as open source software, including but not limited to software licensed under the following or similar models: (A) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (B) the Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun Community Source License (SCSL), (F) the Sun Industry Standards Source License (SISL), (G) the Apache Server license, (H) QT Free Edition License, (I) IBM Public License, and (J) BitKeeper.
i. Termination. This Agreement is effective until terminated. You may terminate this Agreement at any time by written notice to LineStream. Without prejudice to any other rights, if you fail to comply with the terms of this Agreement, LineStream may terminate your right to use the Licensed Materials upon written notice to you. Upon termination of this Agreement, you will destroy any and all copies of the Licensed Materials in your possession, custody or control and provide to LineStream a written statement signed by your authorized representative certifying such destruction. The following sections will survive any expiration or termination of this Agreement: 2(i) (Termination), 3 (Licensed Materials Ownership), 6 (Warranties and Limitations), 7 (Indemnification Disclaimer), 10 (Export Control), 11 (Governing Law and Severability), and 12 (Entire Agreement). The obligations set forth in Section 5 (Confidential Information) will survive any expiration or termination of this Agreement for three (3) years after such expiration or termination.
3. Licensed Materials Ownership. The Licensed Materials are licensed, not sold to you, and can only be used in accordance with the terms of this Agreement. Subject to the licenses granted to you pursuant to this Agreement, LineStream and LineStream’s licensors own and shall continue to own all right, title, and interest in and to the Licensed Materials, including all copies thereof. The parties agree that all fixes, modifications and improvements to the Licensed Materials conceived of or made by LineStream that are based, either in whole or in part, on your feedback, suggestions or recommendations are the exclusive property of LineStream and all right, title and interest in and to such fixes, modifications or improvements to the Licensed Materials will vest solely in LineStream. Moreover, you acknowledge and agree that when your independently developed software or hardware components are combined, in whole or in part, with the Licensed Materials, your right to use the Licensed Materials embodied in such resulting combined work shall remain subject to the terms and conditions of this Agreement.
4. Intellectual Property Rights.
a. The Licensed Materials contain copyrighted material, trade secrets and other proprietary information of LineStream and LineStream’s licensors and are protected by copyright laws, international copyright treaties, and trade secret laws, as well as other intellectual property laws. To protect LineStream’s and LineStream’s licensors’ rights in the Licensed Materials, you agree, except as specifically permitted by statute by a provision that cannot be waived by contract, not to “unlock”, decompile, reverse engineer, disassemble or otherwise translate any portions of the Licensed Materials that are only provided in a binary or object code format to a human-perceivable form nor to permit any person or entity to do so. You shall not remove, alter, cover, or obscure any confidentiality, trade secret, proprietary, or copyright notices, trade-marks, proprietary, patent, or other identifying marks or designs from any component of the Licensed Materials and you shall reproduce and include in all copies of the Licensed Materials the copyright notice(s) and proprietary legend(s) of LineStream and LineStream’s licensors as they appear in the Licensed Materials. LineStream reserves all rights not specifically granted under this Agreement.
b. Third parties may claim to own patents, copyrights, or other intellectual property rights that cover the implementation of certain Licensed Materials. Certain Licensed Materials may also be based on industry recognized standards and software programs published by industry recognized standards bodies and certain third parties claim to own patents, copyrights, and other intellectual property rights that cover implementation of those standards. You acknowledge and agree that this Agreement does not convey a license to any such third party patents, copyrights, and other intellectual property rights and that you are solely responsible for any patent, copyright, or other intellectual property right claims that relate to your use and distribution of the Licensed Materials, and your use and distribution of your products that include or incorporate the Licensed Materials.
5. Confidential Information. You acknowledge and agree that the Licensed Materials contain trade secrets and other confidential information of LineStream and LineStream’s licensors. You agree to use the Licensed Materials solely within the scope of the licenses set forth herein, to maintain the Licensed Materials in strict confidence, to use at least the same procedures and degree of care that you use to prevent disclosure of your own confidential information of like importance but in no instance less than reasonable care, and to prevent disclosure of the Licensed Materials to any third party, except as may be necessary and required in connection with your rights and obligations hereunder. You agree to obtain executed confidentiality agreements with your employees and contractors having access to the Licensed Materials and to diligently take steps to enforce such agreements in this respect. LineStream agrees that the employment agreements used in the normal course of your business shall satisfy the requirements of this section. LineStream may disclose your contact information to LineStream’s applicable licensors.
6. Warranties and Limitations. YOU ACKNOWLEDGE AND AGREE THAT THE LICENSED MATERIALS ARE NOT INTENDED FOR USE IN CRITICAL APPLICATIONS WHERE A FAILURE TO OPERATE COULD CREATE IMMEDIATE LIFE THREATENING CIRCUMSTANCES. APPLICATIONS INCLUDING BUT NOT LIMITED TO NUCLEAR REACTOR CONTROL, AEROSPACE NAVIGATION SYSTEMS, AND LIFE SUPPORT SYSTEMS ARE NOT APPROPRIATE FOR USE WITH THE LICENSED MATERIALS. THE LICENSED MATERIALS MAY CONTAIN IRREGULARITIES AND DEFECTS NOT KNOWN TO LINESTREAM. FURTHERMORE, YOU ACKNOWLEDGE AND AGREE THAT THE LICENSED MATERIALS HAVE NOT BEEN TESTED OR CERTIFIED BY ANY GOVERNMENT AGENCY OR INDUSTRY REGULATORY ORGANIZATION OR ANY OTHER THIRD PARTY ORGANIZATION. YOU AGREE THAT PRIOR TO USING, INCORPORATING OR DISTRIBUTING THE LICENSED MATERIALS IN OR WITH ANY CUSTOMER PRODUCT THAT YOU WILL THOROUGHLY TEST THE PRODUCT AND THE FUNCTIONALITY OF THE LICENSED MATERIALS IN OR WITH THAT PRODUCT AND BE SOLELY RESPONSIBLE FOR ANY PROBLEMS OR FAILURES.
THE LICENSED MATERIALS AND ANY REALTED DOCUMENTATION ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LINESTREAM MAKES NO WARRANTY OR REPRESENTATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED MATERIALS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS AND LACK OF NEGLIGENCE. LINESTREAM DISCLAIMS ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS. YOU AGREE TO USE YOUR INDEPENDENT JUDGMENT IN DEVELOPING YOUR PRODUCTS. NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS A WARRANTY OR REPRESENTATION BY LINESTREAM TO MAINTAIN PRODUCTION OF ANY SOFTWARE WITH WHICH THE LICENSED MATERIALS MAY BE USED.
IN NO EVENT SHALL LINESTREAM, OR ANY APPLICABLE LICENSOR, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE LICENSED MATERIALS, REGARDLESS OF WHETHER LINESTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF USE OR INTERRUPTION OF BUSINESS. IN NO EVENT WILL LINESTREAM’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF YOUR USE OF THE LICENSED MATERIALS EXCEED FIVE HUNDRED U.S. DOLLARS (US$500). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages or limitation on how long an implied warranty lasts, the above limitations or exclusions may not apply to you.
7. Indemnification Disclaimer. YOU ACKNOWLEDGE AND AGREE THAT LINESTREAM SHALL NOT BE LIABLE FOR AND SHALL NOT DEFEND OR INDEMNIFY YOU AGAINST ANY THIRD PARTY INFRINGEMENT CLAIM THAT RELATES TO OR IS BASED ON YOUR MANUFACTURE, USE, OR DISTRIBUTION OF THE LICENSED MATERIALS OR YOUR MANUFACTURE, USE, OFFER FOR SALE, SALE, IMPORTATION OR DISTRIBUTION OF YOUR PRODUCTS THAT INCLUDE OR INCORPORATE THE LICENSED MATERIALS.
You will defend and indemnify LineStream in the event of claim, liability or costs (including reasonable attorney’s fees related to Your use or any sub-licensee’s use of the Licensed Materials) relating in any way to Your violation of the terms of the License Grants set forth in Section 2, or any other violation of other terms and conditions of this Agreement.
8. No Technical Support. LineStream and LineStream’s licensors are under no obligation to install, maintain or support the Licensed Materials.
9. Notices. All notices to LineStream hereunder shall be delivered to LineStream Technologies, Inc., 1468 W 9th Street, Suite 100, Cleveland, OH 44113, Attn: Office of the CFO. All notices shall be deemed served when received by LineStream.
10. Export Control. You hereby acknowledge that the Licensed Materials in combination with the Licensed Devices may be subject to export control under the U.S. Commerce Department’s Export Administration Regulations (“EAR”) or other laws. You further hereby acknowledge and agree that unless prior authorization is obtained from the U.S. Commerce Department, neither you nor your customers will export, re-export, or release, directly or indirectly, any Customer Products in violation of the EAR or other laws. You agree that none of the Licensed Materials may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan and Syria or any other country the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List or Entity List. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you will not use or transfer the Licensed Materials for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license or for a military end-use in, or by any military entity of Albania, Armenia, Azerbaijan, Belarus, Cambodia, China, Georgia, Iran, Iraq, Kazakhstan, Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and Vietnam. Any software export classification made by LineStream shall be for LineStream’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such software or whether an export license or other documentation is required for the exportation of such software. You shall be solely responsible for performing all acts and obtaining all approvals that may be required in connection with this Agreement required by any government with regard to export control. In addition to the United States government, this includes but is not limited to the People’s Republic of China’s Measures on the Administration of Software Products, Management Regulations on Technology Import-Export, and Technology Import and Export Contract Registration Management Rules.
11. Governing Law and Severability. This Agreement will be governed by and interpreted in accordance with the laws of the State of Ohio, without reference to conflict of laws principles. If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA), as it may be enacted in the State of Ohio. The parties agree that non-exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the courts located in the State of Ohio. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and either party may seek injunctive relief in any United States or foreign court.
12. Entire Agreement. This is the entire Agreement between you and LineStream, and absent a signed and effective software license agreement related to the subject matter of this Agreement, this Agreement supersedes any prior agreement between the parties related to the subject matter of this Agreement. Notwithstanding the foregoing, any signed and effective software license agreement relating to the subject matter hereof will supersede the terms of this Agreement. No amendment or modification of this Agreement will be effective unless in writing and signed by a duly authorized representative of LineStream. You hereby warrant and represent that you have obtained all authorizations and other applicable consents required empowering you to enter into this Agreement.