This END USER LICENSE AGREEMENT (the “Agreement”) between Pison Technology, Inc., a corporation having a place of business at 179 South Street 4th Floor Boston, MA 02111 (“Pison”) and the end user who accepts the terms in this Agreement or otherwise accesses or makes use of the Pison Assets (“You” or “Your”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND PISON AND IS IN ADDITION TO ANY OTHER AGREEMENTS EXISTING BETWEEN YOU AND PISON. THIS AGREEMENT SHALL GOVERN YOUR ACCESS AND USE OF PISON TECHNOLOGY, SYSTEMS, INCLUDING DEVICES, AND/OR RELATED SOFTWARE (THE “PISON TECHNOLOGY”), AS WELL AS ANY MANUALS, INSTRUCTIONS, DESCRIPTIONS, SPECIFICATIONS OR OTHER MATERIALS, IN HARD COPY OR ELECTRONIC FORM, DESCRIBING OR RELATING TO THE USE OF THE PISON TECHNOLOGY (THE "DOCUMENTATION"). IN THIS AGREEMENT, PISON TECHNOLOGY AND DOCUMENTATION SHALL BE REFERRED TO AS “PISON ASSETS”
TO THE EXTENT AN EXISTING AGREEMENT BETWEEN YOU AND PISON ALSO COVERS THE PISON ASSETS, THE MORE RESTRICTIVE OF: THESE TERMS; AND THOSE OF THE EXISTING AGREEMENT, SHALL APPLY TO THE PISON ASSETS.
TO THE EXTENT THIS AGREEMENT IS CONSIDERED TO BE AN OFFER BY PISON, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY TERMS IN ANY PURCHASE ORDER OR OTHER DOCUMENTATION ISSUED BY OR ON BEHALF OF YOU THAT CONTAINS ADDITIONAL OR CONFLICTING TERMS OR PURPORTS TO REPLACE, REJECT, MODIFY OR BE A COUNTER OFFER TO THIS AGREEMENT, ARE HEREBY EXPRESSLY REJECTED AND ARE VOID.
BY CLICKING THE "I ACCEPT" BUTTON OR BY OTHERWISE USING OR ACCESSING THE PISON ASSETS, YOU AFFIRM THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “DECLINE" BUTTON AND DO NOT ACCESS OR USE THE PISON ASSETS.
BY CLICKING THE "I ACCEPT" BUTTON OR BY ACCESSING OR USING THE PISON ASSETS, YOU INDICATE THAT YOU INTEND SUCH ACT TO SERVE AS YOUR SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE, AND IF YOU ARE ACCESSING OR USING THE PISON ASSETS IN YOUR CAPACITY AS AN EMPLOYEE OR AGENT OF A BUSINESS ENTITY, YOU WARRANT THAT YOU HAVE ACTUAL AUTHORITY TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT.
1. General. The Pison Assets comprise, include and otherwise may disclose proprietary bioelectric controller systems for intuitive and powerful gesture control of technology and related products, and are owned and controlled by Pison.
2. Limited License Only. The Pison Assets are non-exclusively licensed, not sold, to You conditioned on Your continued compliance with the terms and conditions of this Agreement. Your limited license is not sublicensable or transferable to any other person or entity. Without limiting the foregoing, You are not licensed to rent, lease, transfer, or distribute the Pison Assets, in whole or in part. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU HEREIN ARE RESERVED BY PISON.
3. Restrictions. By accessing or using the Pison Assets, You hereby acknowledge and agree to the following restrictions (“Restrictions”): You shall:
(a) only provide access to or otherwise share the Pison Assets with others authorized by Pison to access and/or use same;
(b) comply with all notices, instructions and documentation provided with or relating to the Pison Assets;
(c) comply with all applicable international, federal, state and local laws and regulations applicable to Your use of the Pison Assets, as permitted under this Agreement (or any other Agreement between You and Pison);
(d) not use Pison Assets for any other purposes than internal, non-public testing and demonstrating on a non-commercial basis;
(e) not use the Pison Assets other than for its intended uses
(f) not remove, obscure, or otherwise alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Pison Assets, and shall retain and reproduce in full the Pison copyright, disclaimers and other proprietary notices exactly as such appear on the Pison Assets and on all copies of the content, documentation and sample code (whether or not modified) that You are permitted to make under this Agreement (or any other Agreement between You and Pison);
(g) not distribute, sell, deploy, publicly display or perform, sublicense, lease, rent, loan, give, assign, or otherwise transfer to any third party the Pison Assets, in whole or in part, unless You are expressly permitted to do so via a separate written Agreement between You and Pison;
(h) use the Pison Assets at Your sole risk;
(i) not engage in any activity with the Pison Assets that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of Pison or any third party;
(j) not incorporate, combine, or distribute any portion of the Pison Assets with software or code that requires as a condition of use, modification, and/or distribution of such software or code that the Pison Assets be: (i) disclosed or distributed in source code form; (ii) licensed for the purposes of making derivative works; or (iii) redistributable free of charge;
(k) not modify or create derivative works of or from the Pison Assets;
(l) not engage in any activity using or related to the Pison Assets that infringes, violates, or misappropriates the rights of Pison, its affiliates or any third party;
(m) not directly or indirectly, or permit or assist any third party to, reverse engineer, reverse compile, decompile, disassemble or in any way attempt to or appropriate the proprietary content (including any trade secrets) of the Pison Assets; and
(n) not directly or indirectly, or permit or assist any third party to, “break open” or otherwise attempt to gain access to the interior of a Pison Asset, or use data packet sniffing, data tapping or attempt any examination or analysis of real-time or historical raw voltage data produced by, a Pison Asset.
4. Violations of Restrictions. You hereby acknowledge and agree that Your access to the Pison Assets may be terminated without warning if You violate any of the Restrictions set forth above, or is Pison believes, in its sole discretion, that Your access to and/or use of the Pison Assets violates any law or regulation.
5. Termination by You. You may terminate Your limited license to the Pison Assets at any time by: (a) sending a written notice to Pison; and (b) making no further use of the Pison Assets;
6. Termination by Pison. Pison has the right, but not the obligation, to terminate this Agreement WITHOUT NOTICE if You fail to comply with any term or condition of this Agreement, including, without limitation, the Restrictions set forth above.
7. Effects of Termination. Upon termination of this Agreement for any reason (by You or by Pison), You shall: (a) stop all access to and use of the Pison Assets; and (b) return to Pison or destroy (at Pison's sole option) the Pison Assets. If You are allowed by Pison to destroy the Pison Assets, You will also provide Pison prompt written certification of such destruction.
8. Feedback. If You, Your affiliates, or Yours and their respective employees, agents or personnel, directly or indirectly provide suggestions, ideas, or other feedback (collectively, “Feedback”) to Pison about the Pison Assets, You hereby acknowledge and agree that PISON will be free to exercise all rights in and to such Feedback, in whole or in part, without restriction, acknowledgement and/or compensation or other remuneration to You or any third party.
9. Confidential Information. For purposes of this Agreement, "Confidential Information" means any and all of Pison’s confidential or proprietary technical or business information, in any tangible or non-tangible form. You acknowledge and agree that the: (a) Pison Assets constitute and comprise Confidential Information of Pison; (b) Pison Assets may contain or otherwise make use of or reveal valuable intellectual property and other proprietary rights, including trade secrets, of Pison; and (c) the Pison Assets are included in the Confidential Information of Pison.
10. Confidentiality Obligations. You agree that You shall: (a) not use any of the Confidential Information except to as expressly authorized under this Agreement (or any other Agreement between You and Pison); (b) not provide access to or disclose any Confidential Information to any third party; and (c) take actions to protect the confidentiality of all Confidential Information which are at least as stringent as the precautions You take to protect Your own confidential information and which in all cases are at least reasonable precautions. Confidential Information received by Pison from a third party will be deemed Confidential Information of Pison. You hereby acknowledge and agree that any misuse or disclosure of Confidential Information would cause irreparable harm and, without limiting any of Pison’s other remedies at law or equity, in the event of any actual or threatened breach or violation by You of the provisions of this Agreement concerning Confidential Information, Pison is entitled, without limiting any of Pison’s other remedies at law or equity, to obtain injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach in addition to any other remedies. Your confidentiality obligations pertaining to the Pison Assets and the Confidential Information will survive any termination of this Agreement, including for so long as any trade secrets continue to qualify as trade secrets under applicable law.
11. Damaged Pison Assets. In the event You return any Pison Asset to PISON in a damaged condition (one which requires repairs to return the Pison Asset to operational condition), You shall be responsible for the actual costs of such repairs, plus a X% administrative fee, and will promptly reimburse Pison for same.
12. Lost or Missing Pison Assets. In the event You lose or otherwise fail to return any Pison Asset to Pison as required under this Agreement, You shall be responsible for a replacement fee of [US$XXX] for each such Pison Asset.
13. NO REPRESENTATIONS OR WARRANTIES. THIS PISON ASSETS ARE PROVIDED AS IS, WHERE IS AND AS-AVAILABLE, BUT WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER; INCLUDING WITHOUT THE EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION. Without limiting the foregoing, You shall have sole responsibility under this Agreement for Your selection, access and use of the Pison Assets, and any results, content, data or other materials arising from, produced by, or related to the Pison Assets.
14. Limitation of Liabilities. To the maximum extent allowed by applicable law, in no event will Pison or any Pison affiliate, or their respective officers, directors, employees or agents, be liable to You or any third party for any damages of any kind or nature whatsoever, including, without limitation, loss of data, loss of use, or indirect, special, incidental or consequential damages in any way related to or arising out of the access to and/or use of the Pison Assets, whether based upon warranty, contract, or otherwise, whether or not injury was sustained by persons or property or otherwise, and whether or not loss was sustained from, or arose out of, use of Pison Assets.
15. WAVIER/INDEMNIFICATION OBLIGATIONS. WITH RESPECT TO ANY AND ALL CLAIMS ARISING FROM YOUR ACCESS TO, USE (OR MISUSE) OF, OR RESULTS, CONTENT, DATA OR OTHER MATERIALS OBTAINED FROM OR UTILIZING, THE PISON ASSETS (COLLECTIVELY, “CLAIMS”), YOU HEREBY AGREE TO AND SHALL:
(A) WAIVE SUCH CLAIMS AGAINST PISON, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; AND
(B) INDEMNIFY AND HOLD HARMLESS PISON, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FOR ANY DAMAGE THAT YOU OR ANY THIRD PARTY MAY INCUR FROM SAME.
16. Collection of Information. Pison may collect and use information about Your usage of the Pison Assets, including [want to list anything specifically here?]. Pison may use this information, as long as it is in a form that does not personally identify You, to measure the use and performance of, and otherwise improve and modify, the Pison Assets.
a. Independent Contractors. You and Pison are and shall remain independent contractors under this Agreement. Nothing contained in this Agreement shall be deemed or construed to create a partnership or joint venture, to create the relationships of an employer-employee or principal-agent, or to otherwise create any liability for or obligation of either You or Pison whatsoever with respect to the indebtedness, liabilities, and obligations of each other or any third party.
b. Entire Agreement. This Agreement contains the entire understanding between You and Pison concerning the subject matter outlined in this Agreement.
c. Amendment. This Agreement may be amended only by a writing executed by both You and Pison.
d. Governing Law. This Agreement shall be governed by, and will be construed under, the laws of the United States of America and the laws of the Commonwealth of Massachusetts, without regard to choice of law principles.
e. Disputes. All disputes arising out of or related to this Agreement and/or Your Your access to or use of the Pison Assets shall be subject to the exclusive jurisdiction of the state and federal courts located within Massachusetts, and You agree to submit to the personal jurisdiction and venue of such courts.
f. Export Compliance. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, You will not, and You will not permit or assist others to, export, direct or transfer the Pison Assets, in whole or in part, to any destination, person or entity restricted or prohibited by the Export Controls.