Software End User License Agreement

This agreement governs your use of Xsight Labs software accompanying our Products. By using the Software, you agree to these terms.

1. License. Licensor is the owner of the software and associated documentation made available to Company by or on behalf of Licensor (the “Software”). Unless Licensor expressly states otherwise in writing, the Software will be provided in executable form. Subject to the terms and conditions of this Agreement, Licensor hereby grants Company a non-exclusive, non-transferable, non-sublicensable license to (a) use the Software in accordance with applicable documentation, (b) configure and program any programmable modules of the Software solely through the functionality and tools made available within the Software, (c) modify Software that Licensor has provided in source code form, (d) incorporate the Software, solely in executable code form, in Company Products and (e) distribute Company Products incorporating executable code of the Software solely to Authorized Third Parties, provided that such Authorized Third Parties receive only a limited right to use the Software as incorporated in the Company Products and shall have no right to modify, extract, sublicense, or further distribute the Software on a standalone basis. “Company Products” means any product or service of Company that provides significant and material functionality in addition to the Software, such that the Software is not the primary value or purpose of the Company Product. “Authorized Third Party” means an end user customer of Company’s products and services that has executed an agreement with Company containing provisions substantially equivalent to Sections 4 (Restrictions), 5 (Intellectual Property) and 8 (Confidentiality), and providing that Licensor shall not be directly liable to such end user customer. Licensor may provide updates, upgrades, and new releases available for download and installation by Company (“Upgrades”), and all such Upgrades will be deemed part of the Software subject to the provisions of this Agreement.
2. Subcontractors. Company may engage third-party subcontractors to exercise its rights or perform its obligations under this Agreement, provided that: (a) the identity of any such subcontractor that receives access to source code or that configures or programs any programmable modules is subject to the prior written approval of Licensor; (b) Company shall remain fully responsible and liable for all acts and omissions of its subcontractors as if they were the acts and omissions of Company itself; and (c) Company shall ensure that any subcontractor is bound by written obligations at least as protective of Licensor and the Software as those set forth in this Agreement.
3. Source Code. Except as expressly authorized by Licensor in writing, any Software provided in source code form is provided solely for Company’s use in accordance with Section 1 of this Agreement and may not be disclosed, distributed, or otherwise made available to any third party in source code form without the prior written consent of Licensor. Licensor shall have no responsibility or liability whatsoever for any modifications made to the Software, or for any modified Software, and Licensor provides no warranties of any kind, express or implied, with respect to any such modifications, any modified Software, or the results thereof.
4. Restrictions. Except as expressly permitted hereunder, Company may not, nor may Company assist other parties to: (a) modify, or create derivative works of the Software or parts thereof that are not provided in source form; (b) distribute, sell, or transfer the Software or parts thereof or sublicense its right to use the Software, except in executable form as incorporated into Company’s products and services that provide significant functionality in addition to the Software; (c) attempt to disable or circumvent any security or access control mechanism of Licensor’s software, products or services; (d) reverse engineer, disassemble, or decompile the Software; or (e) remove any trademarks or notices (including copyright notices) from the Software. Company’s agreements with its customers shall contain provisions imposing substantially similar restrictions on such customers.
5. Intellectual Property. Licensor retains all right, title, and interest in the Software and all intellectual property rights therein. Subject to the foregoing, Company owns all right, title and interest in any modifications made by or on behalf of Company to Software that was provided hereunder to Company in source code form. For the avoidance of doubt, nothing herein shall restrict or limit Licensor’s right to independently develop, acquire, license, distribute, or exploit any such modifications, and Company shall not assert any claim (including under applicable intellectual property rights) that would prevent or impair such independent development or use by Licensor and its representatives and customers. No rights are granted hereunder by estoppel or by implication. All rights not granted to Company herein are reserved to Licensor or its licensors. If Company provides Licensor with any feedback concerning the Software, Company hereby grants Licensor a non-exclusive, perpetual license to exploit all such feedback without any obligation to Company.
6. Payment and Payment Terms. Company shall pay Licensor the fees and on the payment terms agreed by the parties in writing for the license rights granted hereunder and the support of the Software. Except as otherwise agreed by the parties in writing, all payments shall be due within thirty (30) days from the date of Licensor’s invoice. Company shall not withhold or set off any amounts due to Licensor for any reason. Any amounts not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less, from the due date until paid in full.
7. Support; Reporting. Company shall promptly notify Licensor in writing of any bugs, errors, unexpected failures in performance, security breaches, vulnerabilities, or other defects discovered in the Software. Licensor shall use commercially reasonable efforts, within a reasonable time, to address any material errors or vulnerabilities in the Software that are appropriately documented and notified to Licensor by Company. Company shall be solely responsible for providing all support and services to its end users and customers, and the Licensor shall have no obligation or liability in connection with the provision of such support or services. Company shall not make any representations or warranties on behalf of Licensor to any third party. All support provided by Company shall be at Company's own expense, and Company shall indemnify and hold harmless Licensor from any claims arising from Company's provision or failure to provide support services. Licensor shall use commercially reasonable efforts to provide support to Company in respect of the Software, up to the maximum support hours agreed by the parties in writing. Any support requested beyond the Maximum Support Hours, or any support relating to modifications of the Software not developed or provided by Licensor, shall be provided subject to Licensor’s then-current standard support rates and terms.
8. Confidentiality. Company shall not, without the prior written consent of Licensor, publish, disclose, disseminate, or otherwise make available to any third party any non-public information regarding the Software, including without limitation any test results, performance data, analyses, benchmarks, evaluations, feedback, or recommendations. All such information, together with any copies, extracts, notes, or derivatives thereof, shall be deemed the confidential information of Licensor. Company shall (i) maintain such information in strict confidence using at least the same degree of care it uses to protect its own most sensitive information, and in no event less than reasonable care; (ii) restrict access solely to those of its employees and contractors who have a strict need to know for purposes expressly permitted under this Agreement and who are bound by written obligations of confidentiality no less protective than those set forth herein; (iii) not use such information for any purpose other than the use of the Software as expressly authorized in this Agreement; and (iv) upon Licensor’s request, promptly return or permanently destroy all such information (including any copies, summaries, or analyses prepared by Company) and certify such destruction in writing. Notwithstanding the foregoing, Company may disclose to its end user customers general performance characteristics of the Software independently generated by Company solely under written confidentiality obligations no less protective than those set forth herein. Company shall promptly notify Licensor in writing of any bugs, errors, defects, or security vulnerabilities in the Software discovered by or reported to Company, and shall provide Licensor with all reasonably available information necessary to reproduce and assess such issues. Company shall not disclose any security vulnerabilities publicly without first providing Licensor with a reasonable opportunity to investigate and address such vulnerabilities.
9. Licensor Warranties; Disclaimer. The Software is provided “AS IS”. Licensor (and its licensors and commercial partners) expressly disclaims any warranties with respect to the Software. Licensor disclaims any statutory or implied warranties, including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement. No warranty is made that the Software will meet any requirements, that the operation of the Software will be continuous or error-free, that the Software will operate as intended or at all under all conditions, or that any defects in the Software will be corrected.
10. Limitation of Liability. In no event shall Licensor (or its licensors or commercial partners) be liable to Company or any other entity for indirect, special, incidental, or consequential damages (including, but not limited to, loss of profits, loss of data, or loss of use damages) as a result of the Software or the use thereof, even if Licensor has been advised of the possibility of such damages or losses. The total liability of Licensor (and its licensors or commercial partners) for the Software, whether based on contract, tort, or other legal theory, shall not exceed the greater of (a) amounts actually paid to Licensor specifically for the use of the Software, or (b) one hundred dollars ($100).
11. Termination. This Agreement shall come into effect as of the Effective Date and shall continue in effect until terminated according to the provisions hereof or, if earlier, for the term agreed by the parties in writing. Either party may terminate this Agreement as agreed by the parties in writing. Either party may terminate this Agreement upon the occurrence of a material breach or default as to any obligation hereunder by the other party and the failure of such breaching party to remedy such breach within thirty (30) days after receiving written notice thereof from the non-breaching party, any such termination becoming immediately effective upon the giving of written notice of termination. Licensor may also terminate this Agreement immediately upon written notice if Company violates any restrictions set forth in Sections 2 or 5, or fails to comply with export control requirements in Section 13. Upon the expiry or termination of this Agreement, Company shall cease all use of the Software and destroy all copies thereof. The termination or expiration of this Agreement shall not affect the rights of Company’s end-user customers to continue using Company Products incorporating the Software that were delivered prior to such termination or expiration, and such rights shall survive the termination or expiration of this Agreement. The rights and obligations of the parties as set forth in Sections 4 – 16 shall survive the termination or expiration of this Agreement for any reason.
12. General. Any waivers of any condition of this Agreement must be in writing, and the waiver of any requirement in certain situations or circumstances shall not be interpreted as the waiver of such requirement in other situations or circumstances. This Agreement constitutes the entire agreement between the parties hereto. Any amendment or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be interpreted as necessary to give maximum effect to its provisions as possible under applicable law and the remainder of this Agreement shall remain in effect. Licensor may assign or transfer any of its rights or obligations hereunder without Company’s consent. Company may not assign any of its obligations or rights hereunder.
13. Governing Law and Dispute Resolution. This Agreement (including this Section 13) will be governed by and construed in accordance with the laws of the State of New York. The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts located in New York, New York, for [HG1] the resolution of any disputes arising out of or relating to this Agreement, and waive any objection to venue or forum non conveniens with respect to proceedings brought in such courts. Notwithstanding the foregoing, either party may seek interim relief, including an interim injunction, in any court of competent jurisdiction. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. 
14. Compliance. Company represents, warrants, and covenants that it, and its directors, officers, employees, contractors, agents, distributors, resellers, end users or other representatives, shall at all times comply with all applicable export control, trade compliance, and economic sanctions laws and regulations (collectively, “Trade Controls”), including, without limitation, the Export Administration Regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), the International Traffic in Arms Regulations administered by the U.S. Department of State’s Directorate of Defense Trade Controls (“DDTC”), and sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Company represents, warrants, and covenants that neither the Company nor any of its directors, officers, employees, contractors, agents, distributors, resellers, end users or other representatives is designated on any sanctions or other restricted party list under applicable Trade Controls, including without limitation the List of Specially Designated Nationals and Blocked Persons maintained by OFAC, the Entity List, Denied Persons List, Military End Users List, or Unverified List maintained by BIS, and the List of Statutorily Debarred Parties maintained by DDTC, or is otherwise subject to sanctions or export control restrictions on the basis of being owned or controlled by, or acting for or on behalf of, whether directly or indirectly, individually or in the aggregate, one or more sanctioned or otherwise restricted persons or entities (collectively, “Restricted Parties”). The Company shall not directly or indirectly export, re-export, sell, or otherwise transfer any Products, parts, components, accessories, software, technology, or related technical data in violation of Trade Controls, or to any Restricted Party or destination subject to applicable enhanced export control or sanctions restrictions absent any required government authorization. Company is responsible for the compliance of its directors, officers, employees, contractors, agents, distributors, resellers, end users or other representatives with the foregoing. Licensor may from time to time communicate to Company any applicable conditions, restrictions, and/or requirements included in any license, authorization, or government consent obtained by the Licensor, and Company shall strictly comply with such conditions, restrictions, and/or requirements. Company shall maintain complete and accurate books, records, and documentation reasonably necessary to demonstrate compliance with this Section and with applicable Trade Controls, including records relating to export classifications, end users, end uses, destinations, screening, and any required governmental authorizations and including applicable end use certificates to the extent requested by Licensor or required by applicable law. Such records shall be retained for at least five (5) years from the date of the relevant transaction (or such longer period as required under applicable law) and shall be made available to Licensor for review upon reasonable prior written notice, solely for the purpose of verifying compliance with this Agreement.
15. Audit Rights. Licensor shall have the right, upon reasonable notice and during regular business hours, to audit Company's use and distribution of the Software to verify compliance with this Agreement. Company shall provide reasonable cooperation and access to relevant records for such audit purposes.
16. US Government Restricted Rights. The Software is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Software and related materials by the U.S. Government constitutes acknowledgment of Licensor’s proprietary rights in same.