Tangram Robotics, Inc. dba Tangram Vision End User License Agreement (EULA)

This Tangram Robotics, Inc. dba Tangram Vision, End User License Agreement (this “Agreement”) is a binding agreement between Tangram Robotics, Inc. dba Tangram Vision, a Delaware corporation (“Tangram”), and you, an individual or the legal entity on whose behalf you are entering into this Agreement (“you” or “Licensee”), and governs your download, installation of, access to, and use of the Tangram software and data products.  By clicking “I Accept,” downloading, installing, accessing or using the Licensed Software (defined below), you represent that (1) you have read, understand and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Tangram, and (3) you have the authority to enter into this Agreement.  If you do not accept the terms of this Agreement or if you do not have the appropriate authority to enter into this Agreement, you must not download, install, access or use the Licensed Software.  

1. DEFINITIONS. As used in this Agreement:

“Documentation” means the end user manuals, video tutorials, API documentation and other materials provided to Licensee along with the Software.

“Executable Code” means the fully compiled binary version of a software program that can be executed by a computer and used by an end user without further compilation.

“Instance” means an individual device for which the Licensed Software is licensed.

“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights and moral rights, (b) trade secrets, (c) patents and patent applications, and (d) other proprietary rights, but specifically excluding any trademarks, service marks and similar trade name rights.

“License Fees” means the fees set forth in an order form (“Order”) and subject to Tangram’s Master Subscription Agreement, if applicable.

“Licensed Software” means the Tangram Vision SDK, and any modifications, updates, or enhancements thereto that Tangram may provide to Licensee pursuant to this Agreement.

“Source Code” means the human-readable version of a software program that can be compiled into Executable Code.

2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, Tangram grants to Licensee a non-exclusive, non-transferable (except as permitted under Section 9.5 (Assignments)), license to access, download and use the Licensed Software solely for Licensee’s internal business purposes of managing and optimizing perception sensors in accordance with the Documentation and for up to the number of Instances indicated in an Order, and if no Order is executed, for up to five (5) Instances, and to make one copy of the Licensed Software solely for backup or archival purposes.  
3. LICENSE RESTRICTIONS.  Licensee acknowledges that the Licensed Software and its structure, organization, and Source Code constitute valuable trade secrets of Tangram.  Accordingly, Licensee agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software; (b) merge the Licensed Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer (except in connection with an assignment of Licensee’s rights permitted under Section 9.5 (Assignments)) the Licensed Software to any third party, (d) use the Licensed Software in any time-sharing arrangement, (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Licensed Software; (f) use the Licensed Software for more than the permitted number of Instances; or (g) otherwise use or copy the Licensed Software except as expressly allowed under Section 2 (License Grant).
4. LICENSE FEES AND PAYMENT.  If your use of the Licensed Software exceeds the free Instances limit, you will pay the License Fees to Tangram in accordance with the payment schedule set forth in the applicable Order and under the terms of the Master Subscription Agreement.
5. DISCLAIMER OF WARRANTIES.  TANGRAM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE LICENSED SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, LOSS OF DATA, ACCURACY OF RESULTS, INTERFERENCE WITH LICENSEE'S QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE LICENSED SOFTWARE IS PROVIDED "AS IS", AND "AS AVAILABLE" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH THE LICENSEE. LICENSEE REPRESENTS THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY TANGRAM, ITS AGENTS OR EMPLOYEES. TANGRAM DOES NOT WARRANT ANY THIRD PARTY WEBSITE CONTENT OR FUNCTIONALITY, OR THAT THE TANGRAM VISION SDK WILL BE ERROR-FREE OR UNINTERRUPTED.
6. INFRINGEMENT CLAIMS.  Tangram shall (i) defend any claim brought against Licensee by a third party to the extent it alleges that the Licensed Software directly infringes any U.S. copyrights or misappropriates any trade secrets, and (ii) pay damages awarded against Licensee in a final judgment (or amounts agreed in a monetary settlement) in any such action that are specifically awarded against Licensee or agreed to in a monetary settlement; provided that Licensee provides Tangram with (1) prompt written notice of; (2) sole control over the defense and settlement of; and (3) all information and assistance reasonably requested by Tangram in connection with the defense or settlement of, any such claim.  If any such claim is brought or threatened, Tangram may, at its sole option and expense: (a) procure for Licensee the right to continue to use the Licensed Software; (b) modify the Licensed Software to make it non-infringing; (c) replace the Licensed Software with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate this Agreement and provide a pro-rata refund of any applicable prepaid License Fees for the affected Licensed Software.  Notwithstanding the foregoing, Tangram will have no liability to Licensee for any claim arising out of or related to (I) the use of the Licensed Software in combination with software, technology, products or services not provided by Tangram, (II) Licensee’s failure to use the Licensed Software in accordance with this Agreement or otherwise comply with the terms of this Agreement, (III) any use of any release of the Licensed Software other than the most current release made available to Licensee, or (IV) any modification of the Licensed Software by any person other than Tangram or its authorized agent.  THIS SECTION 6 (INFRINGEMENT CLAIMS) STATES TANGRAM'S ENTIRE LIABILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
7. LIMITATION OF LIABILITY.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TANGRAM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF TANGRAM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TANGRAM’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  EXCEPT FOR ANY ACTION BY TANGRAM FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.  LICENSEE ACKNOWLEDGES THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT TANGRAM WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

8. TERM AND TERMINATION.

8.1.           Term.  The term of this Agreement begins when you click “I Accept,” download the Software, or commence use of the Software and will continue indefinitely unless terminated pursuant to Section 8.2 (Termination).

8.2.           Termination.  Licensee may terminate this Agreement at any time, with or without cause, upon written notice to Tangram.  Tangram may terminate this Agreement, effective immediately upon written notice to Licensee, if (a) Licensee breaches any provision in Section 3 (License Restrictions) and does not cure the breach within ten (10) days after receiving written notice thereof from Tangram, (b) Licensee fails to pay any portion of the License Fees when due, or (c) Licensee breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Tangram.

8.3.           Effects of Termination.  Upon termination or expiration of this Agreement for any reason, all licensed rights granted in this Agreement will immediately cease to exist, and Licensee must promptly discontinue all use of the Licensed Software, erase all copies of the Licensed Software from Licensee’s devices, and return to Tangram or destroy all copies of the Licensed Software and Documentation in Licensee’s possession or control and certify in writing to Tangram that it has fully complied with these requirements.

8.4.           Survival.  Sections 1 (Definitions), 3 (License Restrictions), 5 (Disclaimer of Warranties), 7 (Limitation of Liability), 8.3 (Effects of Termination), and 9 (General) will survive termination of this Agreement for any reason.

9. GENERAL.

9.1.           Proprietary Rights.  The Licensed Software and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of Tangram and its suppliers.  All rights in and to the Licensed Software not expressly granted to Licensee in this Agreement are reserved by Tangram and its suppliers.  Licensee will not remove, alter, or obscure any proprietary notices (including copyright notices) of Tangram or its suppliers on the Licensed Software or the Documentation.

9.2.           No Maintenance or Support.  Tangram is not required to provide any maintenance or support services with respect to the Licensed Software under this Agreement.

9.3.           Compliance with Laws.  Licensee acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Licensed Software.  Licensee agrees that it will not export or re-export the Licensed Software in any form in violation of the export or import laws of the United States or any foreign jurisdiction.  Licensee will defend, indemnify, and hold harmless Tangram from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors, or employees.

9.4.           Inspections.  Licensee will permit Tangram or its representatives to review Licensee’s relevant records and inspect Licensee’s facilities to ensure compliance with this Agreement.  Tangram will give Licensee at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Licensee’s normal operations.

9.5.           Assignments.  Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Licensed Software) to any third party without Tangram’s prior written consent except pursuant to a transfer of all or substantially all of Licensee’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise.  Any attempted assignment or transfer in violation of the foregoing will be void.

9.6.           U.S. Government End Users.  If Licensee is a branch or agency of the United States Government, the following provision applies.  The Licensed Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

9.7.           Notices.  All notices, consents, and approvals under this Agreement must be delivered in writing and will be effective upon delivery as follows: (a) if to Licensee, when sent via email to the email address specified in Licensee’s account; and (b) if to Tangram, when sent via email to support <at> tangramvision <dot> com. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement. Notices will be deemed received when sent, even if the sender receives a machine-generated message that delivery has failed. If Licensee receives a machine-generated message that delivery has failed, for that notice to be valid, Licensee must, no later than ten (10) business days after sending the email message, deliver a tangible copy of that notice with end-to-end tracking and all fees prepaid. 

9.8.        Governing Law and Arbitration.  The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed under the laws of the State of Colorado, including its Uniform Commercial Code, without reference to conflict of laws principles.  Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in Boulder, Colorado under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules.  Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision.

9.9.        Remedies.  Except as provided in Section 6 (Infringement Claims), the parties’ rights and remedies under this Agreement are cumulative.  Licensee acknowledges that the Licensed Software contains valuable trade secrets and proprietary information of Tangram, that any actual or threatened breach of Section 3 (License Restrictions) will constitute immediate, irreparable harm to Tangram for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.  If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

9.10.        Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

9.11.        Severability.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.  

9.12.        Confidentiality of Agreement.  Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors except (a) as required by law or (b) pursuant to a mutually agreeable press release or (c) in connection with a contemplated transfer of such party’s business and this Agreement permitted by Section 9.5 (Assignments) (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party).

9.13.        Construction.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

9.14.        Counterparts.  This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

9.15.        Entire Agreement.  This Agreement, and where applicable, the Master Subscription Agreement, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  If there is a conflict between the terms of this Agreement and the Master Subscription Agreement, the terms of the Master Subscription Agreement will control. This Agreement may be amended only by a written document signed by both parties.  The terms of any purchase order or similar document submitted by Licensee to Tangram will have no effect.

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