Please use this EUSLA if you are from the EU or the UK
End User License Agreement
End User License Agreement
WE HAVE UPDATED OUR END USER LICENSE AGREEMENT. IF YOU ARE A NEW END USER, THEN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) WILL BE EFFECTIVE AS OF THE EFFECTIVE DATE (AS DEFINED IN THIS AGREEMENT). IF YOU ARE AN EXISTING END USER, WE ARE PROVIDING YOU WITH PRIOR NOTICE OF THESE CHANGES WHICH WILL BE EFFECTIVE AS OF FEBRUARY 18, 2022, SUBJECT TO CLAUSE 18 OF THIS AGREEMENT.
PLEASE READ CAREFULLY BEFORE YOU SUBMIT AN ORDER FORM, DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO SERVICES INCLUDING, FOR THE AVOIDANCE OF ANY DOUBT, THE SOFTWARE, THE ABAGY SOLUTION AND THE ABAGY OFFLINE SOLUTION (AS SUCH TERMS ARE DEFINED HEREIN).
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“YOU” OR “END USER”) AND ABAGY ROBOTIC SYSTEMS INC, A DELAWARE CORPORATION WITH OFFICES LOCATED AT 6464 SAVOY DRIVE, SUITE 777, HOUSTON, TX 77036 (THE “SUPPLIER”).
IF YOU SUBMIT AN ORDER FORM OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SERVICES OR THE SOFTWARE, YOU ARE DEEMED TO HAVE AGREED TO BE BOUND UNCONDITIONALLY BY THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED IN THE ORDER FORM THAT YOU HAVE SUBMITTED.
IF YOU DO NOT ACCEPT OR DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM OR REQUEST AN ORDER FORM BE SUBMITTED ON YOUR BEHALF OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SOFTWARE AND/OR THE SERVICES. IF YOU HAVE DONE SO BY MISTAKE, PLEASE INFORM THE SUPPLIER IMMEDIATELY TO DISCUSS NEXT STEPS AND REQUEST A REFUND.
ANY AMENDMENTS TO THIS AGREEMENT ARE AT THE DISCRETION OF THE SUPPLIER.
YOU HEREBY AUTHORIZE THE SUPPLIER AND ITS AFFILIATES TO USE, STORE AND PROCESS CERTAIN PERSONAL DATA IN ACCORDANCE WITH ITS PRIVACY POLICY AVAILABLE AT HTTPS://ABAGY.COM/PRIVACY-POLICY AND TO PROVIDE SUCH PERSONAL DATA TO ITS CONTRACTORS, BUSINESS PARTNERS, ASSIGNEES AND AFFILIATES FOR USES CONSISTENT WITH THEIR COLLECTIVE BUSINESS ACTIVITIES IN CONNECTION WITH THE BUSINESS RELATIONSHIP, INCLUDING COMMUNICATING WITH THEM, INCLUDING FOR PROCESSING ORDERS, PROMOTIONS AND MARKET RESEARCH. YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL CONSENTS NECESSARY FOR THE SUPPLIER AND ITS AFFILIATES TO STORE, PROCESS AND USE SUCH PERSONAL DATA.
IMPORTANT:
PLEASE READ CAREFULLY BEFORE YOU SUBMIT AN ORDER FORM, DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO SERVICES INCLUDING, FOR THE AVOIDANCE OF ANY DOUBT, THE SOFTWARE, THE ABAGY SOLUTION AND THE ABAGY OFFLINE SOLUTION (AS SUCH TERMS ARE DEFINED HEREIN).
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“YOU” OR “END USER”) AND ABAGY ROBOTIC SYSTEMS INC, A DELAWARE CORPORATION WITH OFFICES LOCATED AT 6464 SAVOY DRIVE, SUITE 777, HOUSTON, TX 77036 (THE “SUPPLIER”).
IF YOU SUBMIT AN ORDER FORM OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SERVICES OR THE SOFTWARE, YOU ARE DEEMED TO HAVE AGREED TO BE BOUND UNCONDITIONALLY BY THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED IN THE ORDER FORM THAT YOU HAVE SUBMITTED.
IF YOU DO NOT ACCEPT OR DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM OR REQUEST AN ORDER FORM BE SUBMITTED ON YOUR BEHALF OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SOFTWARE AND/OR THE SERVICES. IF YOU HAVE DONE SO BY MISTAKE, PLEASE INFORM THE SUPPLIER IMMEDIATELY TO DISCUSS NEXT STEPS AND REQUEST A REFUND.
ANY AMENDMENTS TO THIS AGREEMENT ARE AT THE DISCRETION OF THE SUPPLIER.
YOU HEREBY AUTHORIZE THE SUPPLIER AND ITS AFFILIATES TO USE, STORE AND PROCESS CERTAIN PERSONAL DATA IN ACCORDANCE WITH ITS PRIVACY POLICY AVAILABLE AT HTTPS://ABAGY.COM/PRIVACY-POLICY AND TO PROVIDE SUCH PERSONAL DATA TO ITS CONTRACTORS, BUSINESS PARTNERS, ASSIGNEES AND AFFILIATES FOR USES CONSISTENT WITH THEIR COLLECTIVE BUSINESS ACTIVITIES IN CONNECTION WITH THE BUSINESS RELATIONSHIP, INCLUDING COMMUNICATING WITH THEM, INCLUDING FOR PROCESSING ORDERS, PROMOTIONS AND MARKET RESEARCH. YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL CONSENTS NECESSARY FOR THE SUPPLIER AND ITS AFFILIATES TO STORE, PROCESS AND USE SUCH PERSONAL DATA.
TABLE OF CONTENTS
1. DEFINITIONS
2. LICENSE GRANT
3. ORDER PROCESS AND ACTIVATION
4. DATA
5. CHANGE REQUESTS
6. MAINTENANCE RELEASE
7. PAYMENT AND FEES
8. SUPPLIER’S WARRANTIES
9. LIMITS OF LIABILITY
10. INTELLECTUAL PROPERTY RIGHTS
11. TERM AND TERMINATION
12. CONFIDENTIALITY AND PUBLICITY
13. EXPORT AND COMPLIANCE POLICIES
14. MISCELLANEOUS
2. LICENSE GRANT
3. ORDER PROCESS AND ACTIVATION
4. DATA
5. CHANGE REQUESTS
6. MAINTENANCE RELEASE
7. PAYMENT AND FEES
8. SUPPLIER’S WARRANTIES
9. LIMITS OF LIABILITY
10. INTELLECTUAL PROPERTY RIGHTS
11. TERM AND TERMINATION
12. CONFIDENTIALITY AND PUBLICITY
13. EXPORT AND COMPLIANCE POLICIES
14. MISCELLANEOUS
1. DEFINITIONS
1.1 In this Agreement (including the Recitals and the Schedules), the following definitions shall apply:
“Abagy Offline Solution” means a control program generated by the Software which is downloadable offline for purposes of executing production tasks by Robotic Cells, as may be more fully described in this Agreement and as may be modified or updated by the Supplier from time to time.
“Abagy Solution” means a stand-alone software-as-a-service solution provided to End Users on a subscription basis for the purposes of analyzing computer-assisted design models and defining technological parameters and managing Robotic Cells, while executing production tasks, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Activation Date” means the date on which the activation process as set out in Part A or Part B of Schedule 5 to this Agreement has been completed, the Subscription is activated and the Subscription Period commences.
“Activation Request” means a request to activate the Subscription by an End User submitted to the Supplier via its Personal Account and/or by sending a free-form request to activate the Subscription using the email address of the Supplier specified in this Agreement.
“Adaptive Program” means one adaptive robot control program for execution of one specific production task for one specific product according to a 3D model uploaded by the End User to its Personal Account, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Additional Program” means an additional Adaptive Program, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time, available to the End User upon completing the relevant Order Form and making a payment to the Supplier as set out in such Order Form and the relevant invoice.
“Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 20% of the voting securities of a person.
“Business Day” means any day on which banks are open for business in New York (excluding Saturdays, Sundays or public holidays.
“Change Request” means any additional products or services that an End User may wish to order from the Supplier, including any Additional Programs, enhancements or other changes to the Services specified in the original Order Form.
“Confirmation Request Form” means a confirmation request form substantially in the form set out in Schedule 1 to this Agreement completed by the End User and/or the Reseller, as applicable, and submitted to the Supplier.
“Data” means any and all information, knowledge and data relating to the use, testing and assessment of the Services by the End User.
“Derivative Work” means a work that is based on one or more pre-existing works (such as a revision, translation, enhancement, modification, or any other form in which pre-existing work may be recast, transformed or adapted) which, if created without the authorization of the Supplier, would constitute copyright infringement.
“Documentation” means any manuals, how-to guides, help files and other documentation in the English language describing the operation and use of the Services and relevant Technical Requirements developed and updated by Supplier from time to time and made available to the End User via, where applicable, the Personal Account, the Supplier’s website www.abagy.com or other means of notice set out in this Agreement.
“Equipment” means any equipment and ancillary services needed to connect to, access or otherwise use the Services, the Software, Abagy Solution or Abagy Offline Solution, including, without limitation, the RC, modems, hardware, servers, software, operating systems, networking, web servers and the like.
“Effective Date” means the date on which the Order Form has been approved by the Supplier.
“Fee Schedule” means a schedule of Fees set out into this Agreement, as may be modified or updated by the Supplier from time to time.
“Fee” means a fee payable by the End User to the Supplier, including any Initial Subscription Fees and Renewal Subscription Fees, in respect of the Services as specified in the relevant Order Form.
“Governmental Authority” means any supranational, national, state, municipal or local government in any relevant jurisdiction.
“Group Company” means in relation to the Company, any company of which the Company is a subsidiary from time to time (a “holding company”) and any other subsidiaries of that holding company from time to time.
“Initial Subscription Fee” means a fee payable by the End User to the Supplier in respect of the Subscription as set out in the Order Form in accordance with this Agreement.
“Initial Subscription Period” means a fixed period of time commencing on the Activation Date and ending on the date set out in the relevant Order Form during which the End User has access to the Services; provided however that the duration of any Initial Subscription Period shall be the minimum of 12 (twelve) calendar months from the Activation Date.
“Intellectual Property Rights” means any and all rights (by whatever name or term known or designated), associated with the Services, including the Software, Abagy Solution, Abagy Offline Solution or Documentation that are owned by or licensed to the Company or any Group Company, including but not limited to:
(a) rights associated with works of authorship throughout the world, including but not limited to copyrights and moral rights;
(b) trademarks, service marks, trade name rights, domain names, packaging, and similar rights;
(c) trade secret rights;
(d) patents (renewals, extensions, reissues, and re-examinations thereof), design rights, and other industrial property rights;
(e) all registrations, patent applications (including continuations, continuations-in-part, and divisions thereof) now or hereafter in force;
(f) all other intellectual and industrial property rights (of every kind and nature and however designated), including logos, “rental” rights, and rights to remuneration, whether arising by operation of law, contract, license, or otherwise; and
any additional applicable intellectual property (whether or not in documentary form and whether or not patentable, copyrightable, or otherwise protectable under applicable laws), which pertains to the Services, Software, Abagy Solution, Abagy Offline Solution or Documentation.
“License ID” means a unique identification number provided by the Supplier to the End User for purposes of identifying the Subscription.
“License” has the meaning assigned to such term in Section 2.1.
“Maintenance Release” means any release of the Software that corrects faults, adds functionality or otherwise amends, updates or, upgrades the Software, but which does not constitute a New Version.
“New Version” means any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business and which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“Open Source Software” means any software program which are licensed under any form of open-source license, meeting the Open Source Initiative's open source definition from time to time.
“Order Form” means an order form substantially in the form set out in Schedule 1 to the Agreement completed in accordance with this Agreement.
“Permitted Purposes” has the meaning assigned to such term in Section 2.1.
“Permitted Recipients” means the employees, managers, officers, directors, partners, consultants, independent contractors, licensees, successors, assigns and agents of either Party authorized to represent either Party in the performance of its obligations under this Agreement.
“Renewal Subscription Fee” means a fee payable by the End User to the Supplier in respect of the Subscription as set out in the Order Form in accordance with this Agreement.
“Renewal Subscription Period” means a fixed period of time commencing on the following the completion of the Initial Subscription Period or, where applicable, the Renewal Subscription Period, and ending as set out in this Agreement during which the End User has access to the Services; provided however that the duration of any Renewal Subscription Period shall be the minimum of 12 (twelve) calendar months from the Activation Date.
“Responsible Officer” means an individual appointed by the End User for purposes of installing the Software and setting up the End User’s access to the Services whose name and contact details are set out in the relevant Order Form.
“Robotic Cell” or “RC” means a set of equipment designed to fulfil certain production tasks identified by the End User, including industrial manipulators and technical vision equipment, that complies with the Technical Requirements set out in this Agreement, as may be modified or updated by the Supplier from time to time.
“Services” means the Software, Updates, Support Services and any other products or services provided by the Supplier under this Agreement.
“Shared Personal Data” means the personal data to be shared between the Parties under this Agreement.
“Site” means the premises from which the End User carries out its business as notified to the Supplier in writing from time to time.
“Software” means the computer software designed to operate Robotic Cells and consisting of mathematical codes, programs, routines and other functions that control the functioning and operation of computer hardware, including the Abagy Solution and the Abagy Offline Solution, as may be more fully described Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Specific Type Program” or “Program” means a robot control program or an archive of one or more files of a type specified in the Order Form used for execution of a specific production task for a specific product or performing the task of processing on a Robotic Cell of a specific product according to its 3D model, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Subscription” means the license to access the Services, including the license to use the Software, granted by the Supplier to an End User in relation to one relevant Robotic Cell for a term specified in the Order Form or any subsequent Order Forms in accordance with this Agreement.
“Subscription Fee” means either the Initial Subscription Fee or the Renewal Subscription Fee, or a combination thereof, payable by the End User to the Supplier in respect of the Subscription by way of making an Initial Payment, any Regular Payments or a Package Payment, or a combination thereof, as applicable, in accordance with this Agreement and the Order Form.
“Subscription Period” means the fixed period of time during which an End User has access to the Services as set out in the relevant Order Form which may be either:
(a) the Initial Subscription Period only;
(b) one Renewal Subscription Period following the expiry of the Initial Subscription Period; or
(c) the Initial Subscription Period and subsequent multiple Renewal Periods for an unlimited number of consecutive Renewal Periods,
unless the Supplier agrees otherwise as part of the Order Form approval process.
“Support Services” means support and maintenance services to be provided by the Supplier to the End User in connection with the Services and in accordance with this Agreement.
“Technical Requirements” means the technical criteria required to be met by the End User’s Robotic Cell in accordance with this Agreement, set out in Schedule 2 to this Agreement, and as may be modified or updated by the Supplier from time to time.
“Territory” means the United States and Canada.
“third party” means and includes any individual, corporation, trust, estate, partnership, joint venture, company, association, league, governmental bureau or agency, or any other entity regardless of the type or nature, which is not a Party or an Affiliate thereof.
“Trial Period” means a special fixed period of time commencing on the Activation Date and ending on the date set out in the relevant Order Form, provided however that:
(i) during the Trial Period the End User has a limited temporary access to the Services free of charge and for trial purposes only;
(ii) a Trial Period might be granted by the Supplier at its absolute discretion, from time to time, prior to a subsequent Initial Subscription Period, based on commercial purposes and for promotion reasons only;
(iii) the duration of any Trial Period shall be less than the duration of any Initial Subscription Period;
(iv) the Trial Period shall not be counted for the Total Subscription Period.
“Update” mean any periodic Services, including any Maintenance Releases, if any, that the Supplier may provide from time to time at its sole discretion, for purposes of:
(i) providing minor enhancements and/or improvements, patches, fixes, or the like to the Services, including the Software; or
(ii) resolving any technological issues related to the End User’s then-current version of the Software, included in the Subscription.
1.2 In this Agreement (including the Recitals and the Schedules), except where the context otherwise requires:
(a) a reference to this “Agreement” (or to any specified provision of this Agreement) is to this Agreement (or provision) as in force for the time being, as amended, modified, supplemented, varied, assigned or novated, from time to time, and includes the Schedules to it, each of which forms part of this Agreement for all purposes;
(b) a reference to “Sections”, “Schedules” and the “Recitals” is to Sections and the Recitals of, and the Schedules to, this Agreement;
(c) a reference to a “person” shall be construed so as to include any individual, firm, body corporate, joint venture, unincorporated association, partnership, trust, government, governmental body, authority or agency (whether or not having separate legal personality), and a reference to a person includes a reference to that person’s successors and assigns;
(d) a reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;
(e) reference to a “Party” means a party to this Agreement and shall include any permitted assignee or successor to such party in accordance with this Agreement;
(f) a reference to any “law” or “enactment” includes references to: (i) that law or enactment as re-enacted, amended, extended or applied by or under any other enactment (before or after signature of this Agreement); (ii) any law or enactment which that law or enactment re-enacts (with or without modification); and (iii) any subordinate legislation made (before or after signature of this Agreement) under any law or enactment, as re-enacted, amended, extended or applied;
(g) a reference to “writing” shall include any mode of reproducing words in a legible and non-transitory form;
(h) a reference to “costs” and/or “expenses” incurred by a person shall not include any amount in respect of VAT comprised in such costs or expenses for which that person is entitled to credit or repayment as VAT input tax under any applicable provisions;
(i) a reference to “indemnifying” any person against any circumstance includes indemnifying and keeping that person harmless from all actions, claims and proceedings from time to time made against that person and all loss or damage and all payments, costs or expenses made or incurred by that person as a consequence of or which would not have arisen but for that circumstance; and
(j) any reference in this Agreement to a Party providing its “consent” shall be deemed to be a reference to prior written consent, unless specifically stated otherwise.
1.3 Words importing the singular shall include the plural and vice versa, and words importing a gender shall include every gender.
1.4 Headings are for ease of reference only and shall not be taken into consideration in the interpretation of this Agreement.
1.5 If a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day.
1.1 In this Agreement (including the Recitals and the Schedules), the following definitions shall apply:
“Abagy Offline Solution” means a control program generated by the Software which is downloadable offline for purposes of executing production tasks by Robotic Cells, as may be more fully described in this Agreement and as may be modified or updated by the Supplier from time to time.
“Abagy Solution” means a stand-alone software-as-a-service solution provided to End Users on a subscription basis for the purposes of analyzing computer-assisted design models and defining technological parameters and managing Robotic Cells, while executing production tasks, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Activation Date” means the date on which the activation process as set out in Part A or Part B of Schedule 5 to this Agreement has been completed, the Subscription is activated and the Subscription Period commences.
“Activation Request” means a request to activate the Subscription by an End User submitted to the Supplier via its Personal Account and/or by sending a free-form request to activate the Subscription using the email address of the Supplier specified in this Agreement.
“Adaptive Program” means one adaptive robot control program for execution of one specific production task for one specific product according to a 3D model uploaded by the End User to its Personal Account, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Additional Program” means an additional Adaptive Program, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time, available to the End User upon completing the relevant Order Form and making a payment to the Supplier as set out in such Order Form and the relevant invoice.
“Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 20% of the voting securities of a person.
“Business Day” means any day on which banks are open for business in New York (excluding Saturdays, Sundays or public holidays.
“Change Request” means any additional products or services that an End User may wish to order from the Supplier, including any Additional Programs, enhancements or other changes to the Services specified in the original Order Form.
“Confirmation Request Form” means a confirmation request form substantially in the form set out in Schedule 1 to this Agreement completed by the End User and/or the Reseller, as applicable, and submitted to the Supplier.
“Data” means any and all information, knowledge and data relating to the use, testing and assessment of the Services by the End User.
“Derivative Work” means a work that is based on one or more pre-existing works (such as a revision, translation, enhancement, modification, or any other form in which pre-existing work may be recast, transformed or adapted) which, if created without the authorization of the Supplier, would constitute copyright infringement.
“Documentation” means any manuals, how-to guides, help files and other documentation in the English language describing the operation and use of the Services and relevant Technical Requirements developed and updated by Supplier from time to time and made available to the End User via, where applicable, the Personal Account, the Supplier’s website www.abagy.com or other means of notice set out in this Agreement.
“Equipment” means any equipment and ancillary services needed to connect to, access or otherwise use the Services, the Software, Abagy Solution or Abagy Offline Solution, including, without limitation, the RC, modems, hardware, servers, software, operating systems, networking, web servers and the like.
“Effective Date” means the date on which the Order Form has been approved by the Supplier.
“Fee Schedule” means a schedule of Fees set out into this Agreement, as may be modified or updated by the Supplier from time to time.
“Fee” means a fee payable by the End User to the Supplier, including any Initial Subscription Fees and Renewal Subscription Fees, in respect of the Services as specified in the relevant Order Form.
“Governmental Authority” means any supranational, national, state, municipal or local government in any relevant jurisdiction.
“Group Company” means in relation to the Company, any company of which the Company is a subsidiary from time to time (a “holding company”) and any other subsidiaries of that holding company from time to time.
“Initial Subscription Fee” means a fee payable by the End User to the Supplier in respect of the Subscription as set out in the Order Form in accordance with this Agreement.
“Initial Subscription Period” means a fixed period of time commencing on the Activation Date and ending on the date set out in the relevant Order Form during which the End User has access to the Services; provided however that the duration of any Initial Subscription Period shall be the minimum of 12 (twelve) calendar months from the Activation Date.
“Intellectual Property Rights” means any and all rights (by whatever name or term known or designated), associated with the Services, including the Software, Abagy Solution, Abagy Offline Solution or Documentation that are owned by or licensed to the Company or any Group Company, including but not limited to:
(a) rights associated with works of authorship throughout the world, including but not limited to copyrights and moral rights;
(b) trademarks, service marks, trade name rights, domain names, packaging, and similar rights;
(c) trade secret rights;
(d) patents (renewals, extensions, reissues, and re-examinations thereof), design rights, and other industrial property rights;
(e) all registrations, patent applications (including continuations, continuations-in-part, and divisions thereof) now or hereafter in force;
(f) all other intellectual and industrial property rights (of every kind and nature and however designated), including logos, “rental” rights, and rights to remuneration, whether arising by operation of law, contract, license, or otherwise; and
any additional applicable intellectual property (whether or not in documentary form and whether or not patentable, copyrightable, or otherwise protectable under applicable laws), which pertains to the Services, Software, Abagy Solution, Abagy Offline Solution or Documentation.
“License ID” means a unique identification number provided by the Supplier to the End User for purposes of identifying the Subscription.
“License” has the meaning assigned to such term in Section 2.1.
“Maintenance Release” means any release of the Software that corrects faults, adds functionality or otherwise amends, updates or, upgrades the Software, but which does not constitute a New Version.
“New Version” means any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business and which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“Open Source Software” means any software program which are licensed under any form of open-source license, meeting the Open Source Initiative's open source definition from time to time.
“Order Form” means an order form substantially in the form set out in Schedule 1 to the Agreement completed in accordance with this Agreement.
“Permitted Purposes” has the meaning assigned to such term in Section 2.1.
“Permitted Recipients” means the employees, managers, officers, directors, partners, consultants, independent contractors, licensees, successors, assigns and agents of either Party authorized to represent either Party in the performance of its obligations under this Agreement.
“Renewal Subscription Fee” means a fee payable by the End User to the Supplier in respect of the Subscription as set out in the Order Form in accordance with this Agreement.
“Renewal Subscription Period” means a fixed period of time commencing on the following the completion of the Initial Subscription Period or, where applicable, the Renewal Subscription Period, and ending as set out in this Agreement during which the End User has access to the Services; provided however that the duration of any Renewal Subscription Period shall be the minimum of 12 (twelve) calendar months from the Activation Date.
“Responsible Officer” means an individual appointed by the End User for purposes of installing the Software and setting up the End User’s access to the Services whose name and contact details are set out in the relevant Order Form.
“Robotic Cell” or “RC” means a set of equipment designed to fulfil certain production tasks identified by the End User, including industrial manipulators and technical vision equipment, that complies with the Technical Requirements set out in this Agreement, as may be modified or updated by the Supplier from time to time.
“Services” means the Software, Updates, Support Services and any other products or services provided by the Supplier under this Agreement.
“Shared Personal Data” means the personal data to be shared between the Parties under this Agreement.
“Site” means the premises from which the End User carries out its business as notified to the Supplier in writing from time to time.
“Software” means the computer software designed to operate Robotic Cells and consisting of mathematical codes, programs, routines and other functions that control the functioning and operation of computer hardware, including the Abagy Solution and the Abagy Offline Solution, as may be more fully described Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Specific Type Program” or “Program” means a robot control program or an archive of one or more files of a type specified in the Order Form used for execution of a specific production task for a specific product or performing the task of processing on a Robotic Cell of a specific product according to its 3D model, as may be more fully described in Schedule 3 to this Agreement and as may be modified or updated by the Supplier from time to time.
“Subscription” means the license to access the Services, including the license to use the Software, granted by the Supplier to an End User in relation to one relevant Robotic Cell for a term specified in the Order Form or any subsequent Order Forms in accordance with this Agreement.
“Subscription Fee” means either the Initial Subscription Fee or the Renewal Subscription Fee, or a combination thereof, payable by the End User to the Supplier in respect of the Subscription by way of making an Initial Payment, any Regular Payments or a Package Payment, or a combination thereof, as applicable, in accordance with this Agreement and the Order Form.
“Subscription Period” means the fixed period of time during which an End User has access to the Services as set out in the relevant Order Form which may be either:
(a) the Initial Subscription Period only;
(b) one Renewal Subscription Period following the expiry of the Initial Subscription Period; or
(c) the Initial Subscription Period and subsequent multiple Renewal Periods for an unlimited number of consecutive Renewal Periods,
unless the Supplier agrees otherwise as part of the Order Form approval process.
“Support Services” means support and maintenance services to be provided by the Supplier to the End User in connection with the Services and in accordance with this Agreement.
“Technical Requirements” means the technical criteria required to be met by the End User’s Robotic Cell in accordance with this Agreement, set out in Schedule 2 to this Agreement, and as may be modified or updated by the Supplier from time to time.
“Territory” means the United States and Canada.
“third party” means and includes any individual, corporation, trust, estate, partnership, joint venture, company, association, league, governmental bureau or agency, or any other entity regardless of the type or nature, which is not a Party or an Affiliate thereof.
“Trial Period” means a special fixed period of time commencing on the Activation Date and ending on the date set out in the relevant Order Form, provided however that:
(i) during the Trial Period the End User has a limited temporary access to the Services free of charge and for trial purposes only;
(ii) a Trial Period might be granted by the Supplier at its absolute discretion, from time to time, prior to a subsequent Initial Subscription Period, based on commercial purposes and for promotion reasons only;
(iii) the duration of any Trial Period shall be less than the duration of any Initial Subscription Period;
(iv) the Trial Period shall not be counted for the Total Subscription Period.
“Update” mean any periodic Services, including any Maintenance Releases, if any, that the Supplier may provide from time to time at its sole discretion, for purposes of:
(i) providing minor enhancements and/or improvements, patches, fixes, or the like to the Services, including the Software; or
(ii) resolving any technological issues related to the End User’s then-current version of the Software, included in the Subscription.
1.2 In this Agreement (including the Recitals and the Schedules), except where the context otherwise requires:
(a) a reference to this “Agreement” (or to any specified provision of this Agreement) is to this Agreement (or provision) as in force for the time being, as amended, modified, supplemented, varied, assigned or novated, from time to time, and includes the Schedules to it, each of which forms part of this Agreement for all purposes;
(b) a reference to “Sections”, “Schedules” and the “Recitals” is to Sections and the Recitals of, and the Schedules to, this Agreement;
(c) a reference to a “person” shall be construed so as to include any individual, firm, body corporate, joint venture, unincorporated association, partnership, trust, government, governmental body, authority or agency (whether or not having separate legal personality), and a reference to a person includes a reference to that person’s successors and assigns;
(d) a reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;
(e) reference to a “Party” means a party to this Agreement and shall include any permitted assignee or successor to such party in accordance with this Agreement;
(f) a reference to any “law” or “enactment” includes references to: (i) that law or enactment as re-enacted, amended, extended or applied by or under any other enactment (before or after signature of this Agreement); (ii) any law or enactment which that law or enactment re-enacts (with or without modification); and (iii) any subordinate legislation made (before or after signature of this Agreement) under any law or enactment, as re-enacted, amended, extended or applied;
(g) a reference to “writing” shall include any mode of reproducing words in a legible and non-transitory form;
(h) a reference to “costs” and/or “expenses” incurred by a person shall not include any amount in respect of VAT comprised in such costs or expenses for which that person is entitled to credit or repayment as VAT input tax under any applicable provisions;
(i) a reference to “indemnifying” any person against any circumstance includes indemnifying and keeping that person harmless from all actions, claims and proceedings from time to time made against that person and all loss or damage and all payments, costs or expenses made or incurred by that person as a consequence of or which would not have arisen but for that circumstance; and
(j) any reference in this Agreement to a Party providing its “consent” shall be deemed to be a reference to prior written consent, unless specifically stated otherwise.
1.3 Words importing the singular shall include the plural and vice versa, and words importing a gender shall include every gender.
1.4 Headings are for ease of reference only and shall not be taken into consideration in the interpretation of this Agreement.
1.5 If a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day.
2. LICENSE GRANT
2.1 The Supplier grants to the End User a non-exclusive, non-transferable, non-sublicensable, revocable, limited subscription-based license for the Subscription Period, to access the Services and to use the Software for the End User’s business purposes and other purposes set out in this Agreement within the Territory (“Permitted Purposes”), including any Updates, that may be provided to the End Users by the Supplier from time to time, as and when available (“License”), but excluding any new Software features or substantial additional functionality for which the Supplier, in its sole discretion, generally may charge licensees additional charges.
2.2 In relation to the scope of use, use of the Software shall be restricted to use of the Software in object code form only and as set out in the Order Form for the purpose of processing the End User's data for the normal business purposes of the End User (which shall not include allowing the use of the Software by, or for the benefit of, any person other than any employee of the End User).
2.3 The End User may not use the Services, Software, Abagy Solution or Abagy Offline Solution other than as specified in Section 2.1 and Section 2.2 without the prior written consent of the Supplier, and the End User acknowledges that additional fees may be payable on any change of use approved by the Supplier.
2.4 The End User may not use any such information provided by the Supplier or obtained by the End User to create any software whose expression is substantially similar to that of the Services, Software, Abagy Solution or Abagy Offline Solution nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The End User shall not permit any third party to obtain access to the Services, Software, Abagy Solution or Abagy Offline Solution. The End User shall not permit any third party to:
(a) rent, transfer, lease, sub-license, assign or novate the benefit or burden of or otherwise distribute for re-sale the License, the Services, Software, Abagy Solution or Abagy Offline Solution, in whole or in part;
(b) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Software, Abagy Solution and Abagy Offline Solution, source code, structure, algorithms or ideas underlying them;
(c) modify translate, or create derivative works based on the Services, Software, Abagy Solution and Abagy Offline Solution;
(d) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(e) allow the Services, including the Software, Abagy Solution and Abagy Offline Solution to become the subject of any charge, lien or encumbrance;
(f) deal in any other manner with any or all of its rights and obligations under this Agreement; and/or
(g) authorize, permit, aid or abet, assist or otherwise allow or purport to allow any third party to do any of the acts set out in this Section 2.5.
2.6 The Supplier reserves all rights not expressly granted herein.
2.7 The End User confirms that it is acting on its own behalf and not for the benefit of any other person.
2.8 The End User shall:
(a) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”);
(b) be responsible for maintaining the security of the Equipment, Personal Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Personal Account or the Equipment with or without the End User’s knowledge or consent;
(c) ensure that the Software is installed and maintained on designated equipment only in accordance with the Technical Requirements;
(d) keep a complete and accurate record of the End User's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(e) notify the Supplier as soon as it becomes aware of any unauthorized use of the Services, Software, Abagy Solution and Abagy Offline Solution by any person;
(f) pay, for broadening the scope of the licenses granted under the License to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorized use on the date when such use commenced from such date to the date of payment; and
(g) take appropriate actions to protect the Services, Software, Abagy Solution and Abagy Offline Solution from unauthorized copying, modification or disclosure by its users and other third parties.
2.9 The End User shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this License, Services, Software, Abagy Solution and Abagy Offline Solution for the purposes of ensuring that the End User is complying with the terms of the License, provided that the Supplier provides reasonable advance notice to the End User of such inspections, which shall take place at reasonable times.
2.10 The Supplier shall use reasonable commercial efforts to:
(a) give the End User access to the Services using the activation process set out in Section 3;
(b) provide the End User with a Personal Account during the Subscription Period which the End User must use to access the Software;
(c) provide the End User with the Documentation and information necessary to use the Software for its functional purpose;
(d) provide the relevant Updates of the Software as and when they become available;
(e) install, at the expense of the End User, the relevant software module of the Abagy Solution on the local computer of the End User that makes up a part of the End User’s Robotic Cell;
(f) offer training via a range of methods including webex, face to face and telephone sessions, where the End User has requested the same from the Supplier; and
(g) provide the End User with reasonable Support Services.
2.1 The Supplier grants to the End User a non-exclusive, non-transferable, non-sublicensable, revocable, limited subscription-based license for the Subscription Period, to access the Services and to use the Software for the End User’s business purposes and other purposes set out in this Agreement within the Territory (“Permitted Purposes”), including any Updates, that may be provided to the End Users by the Supplier from time to time, as and when available (“License”), but excluding any new Software features or substantial additional functionality for which the Supplier, in its sole discretion, generally may charge licensees additional charges.
2.2 In relation to the scope of use, use of the Software shall be restricted to use of the Software in object code form only and as set out in the Order Form for the purpose of processing the End User's data for the normal business purposes of the End User (which shall not include allowing the use of the Software by, or for the benefit of, any person other than any employee of the End User).
2.3 The End User may not use the Services, Software, Abagy Solution or Abagy Offline Solution other than as specified in Section 2.1 and Section 2.2 without the prior written consent of the Supplier, and the End User acknowledges that additional fees may be payable on any change of use approved by the Supplier.
2.4 The End User may not use any such information provided by the Supplier or obtained by the End User to create any software whose expression is substantially similar to that of the Services, Software, Abagy Solution or Abagy Offline Solution nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The End User shall not permit any third party to obtain access to the Services, Software, Abagy Solution or Abagy Offline Solution. The End User shall not permit any third party to:
(a) rent, transfer, lease, sub-license, assign or novate the benefit or burden of or otherwise distribute for re-sale the License, the Services, Software, Abagy Solution or Abagy Offline Solution, in whole or in part;
(b) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Software, Abagy Solution and Abagy Offline Solution, source code, structure, algorithms or ideas underlying them;
(c) modify translate, or create derivative works based on the Services, Software, Abagy Solution and Abagy Offline Solution;
(d) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(e) allow the Services, including the Software, Abagy Solution and Abagy Offline Solution to become the subject of any charge, lien or encumbrance;
(f) deal in any other manner with any or all of its rights and obligations under this Agreement; and/or
(g) authorize, permit, aid or abet, assist or otherwise allow or purport to allow any third party to do any of the acts set out in this Section 2.5.
2.6 The Supplier reserves all rights not expressly granted herein.
2.7 The End User confirms that it is acting on its own behalf and not for the benefit of any other person.
2.8 The End User shall:
(a) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”);
(b) be responsible for maintaining the security of the Equipment, Personal Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Personal Account or the Equipment with or without the End User’s knowledge or consent;
(c) ensure that the Software is installed and maintained on designated equipment only in accordance with the Technical Requirements;
(d) keep a complete and accurate record of the End User's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(e) notify the Supplier as soon as it becomes aware of any unauthorized use of the Services, Software, Abagy Solution and Abagy Offline Solution by any person;
(f) pay, for broadening the scope of the licenses granted under the License to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorized use on the date when such use commenced from such date to the date of payment; and
(g) take appropriate actions to protect the Services, Software, Abagy Solution and Abagy Offline Solution from unauthorized copying, modification or disclosure by its users and other third parties.
2.9 The End User shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this License, Services, Software, Abagy Solution and Abagy Offline Solution for the purposes of ensuring that the End User is complying with the terms of the License, provided that the Supplier provides reasonable advance notice to the End User of such inspections, which shall take place at reasonable times.
2.10 The Supplier shall use reasonable commercial efforts to:
(a) give the End User access to the Services using the activation process set out in Section 3;
(b) provide the End User with a Personal Account during the Subscription Period which the End User must use to access the Software;
(c) provide the End User with the Documentation and information necessary to use the Software for its functional purpose;
(d) provide the relevant Updates of the Software as and when they become available;
(e) install, at the expense of the End User, the relevant software module of the Abagy Solution on the local computer of the End User that makes up a part of the End User’s Robotic Cell;
(f) offer training via a range of methods including webex, face to face and telephone sessions, where the End User has requested the same from the Supplier; and
(g) provide the End User with reasonable Support Services.
3. ORDER PROCESS AND ACTIVATION
3.1 Prior to the Activation Date and any use, access and installation of the Software, the End User shall:
(a) ensure that all Technical Requirements are satisfied;
(b) ensure that any recommended hardware, if any, is installed at the Site;
(c) ensure that all necessary and prudent measures have been taken to protect its Robotic Cell(s) and computer systems;
(d) provide details of the Responsible Officer to the Supplier;
(e) at its own expense, replace, upgrade and perform maintenance on any parts of the Robotic Cell and/or equipment that are used in conjunction with the Software as and when necessary;
(f) operate the Robotic Cell in strict compliance with the Documentation (including but not limited to any operating instructions and specifications, technical process descriptions and the Technical Requirements);
(g) obtain and maintain any licenses, permissions, consents or the like in respect of any third-party software or as otherwise required through the term of this Agreement; and
(h) provide the Supplier, upon its request, with the information and documentation necessary for the Supplier to carry out its obligations under this Agreement.
3.2 The End User acknowledges that in the event the End User fails to perform its obligations under Section 3.1 or satisfy the Technical Requirements in any way, the Supplier in its sole and absolute discretion may reject the Activation Request.
3.3 Where the End User wishes to purchase a Subscription for the first time or for a new Robotic Cell, the End User and the Supplier shall follow the ordering process set out in Part A of Schedule 5 to this Agreement.
3.4 Where the End User wishes to renew a Subscription, the End User and the Supplier shall follow the ordering process set out in Part B of Schedule 5 to this Agreement.
3.5 Where the End User wishes to purchase any Subscription or renew a Subscription via any reseller approved by the Supplier, the End User shall follow the ordering process set out in the relevant agreement between the Supplier and such reseller.
3.6 Where the End User wishes to purchase a Subscription for the Initial Subscription Period and a Renewal Period or more than one Renewal Period and the End User has fully paid the total Fees due for the Initial Subscription Period and subsequent Renewal Period(s) it has ordered, the Subscription will automatically be renewed by the Supplier.
3.7 If the End User wishes to purchase an additional Subscription for a Renewal Period after a Renewal Period or an Initial Subscription Period expires, the End User must follow the ordering process set out in Schedule 5 to this Agreement and submit an Order Form at least twenty (20) Business Days before the expiry of the current Renewal Period or Initial Subscription Period.
3.8 Unless otherwise provided in the Order Form, the following shall apply provided that the duration of a Trial Period, if any, shall not be included into the Total Subscription Period as set forth hereinafter:
(a) Where the End User has ordered a Subscription for the Initial Subscription Period (so that the Total Subscription Period consists of twelve (12) months), the End User must activate the Software within six (6) calendar months from the date of the Order Form.
(b) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and a Renewal Periods (so that the total Subscription Period is for a term of twenty-four (24), thirty-six (36) or more calendar months), the End User must activate the Software within eighteen (18) calendar months of the date of the Order Form.
(c) If the End User fails to activate the Software within the time periods specified in this Section (a) and (b), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
3.9 If additional configuration and testing of the Software for controlling the End User’s Robotics Cell equipment is necessary during the period prior to the Software activation, the Software may be used by Supplier in test mode in accordance with the appropriate Software testing protocol established by the Supplier.
3.1 Prior to the Activation Date and any use, access and installation of the Software, the End User shall:
(a) ensure that all Technical Requirements are satisfied;
(b) ensure that any recommended hardware, if any, is installed at the Site;
(c) ensure that all necessary and prudent measures have been taken to protect its Robotic Cell(s) and computer systems;
(d) provide details of the Responsible Officer to the Supplier;
(e) at its own expense, replace, upgrade and perform maintenance on any parts of the Robotic Cell and/or equipment that are used in conjunction with the Software as and when necessary;
(f) operate the Robotic Cell in strict compliance with the Documentation (including but not limited to any operating instructions and specifications, technical process descriptions and the Technical Requirements);
(g) obtain and maintain any licenses, permissions, consents or the like in respect of any third-party software or as otherwise required through the term of this Agreement; and
(h) provide the Supplier, upon its request, with the information and documentation necessary for the Supplier to carry out its obligations under this Agreement.
3.2 The End User acknowledges that in the event the End User fails to perform its obligations under Section 3.1 or satisfy the Technical Requirements in any way, the Supplier in its sole and absolute discretion may reject the Activation Request.
3.3 Where the End User wishes to purchase a Subscription for the first time or for a new Robotic Cell, the End User and the Supplier shall follow the ordering process set out in Part A of Schedule 5 to this Agreement.
3.4 Where the End User wishes to renew a Subscription, the End User and the Supplier shall follow the ordering process set out in Part B of Schedule 5 to this Agreement.
3.5 Where the End User wishes to purchase any Subscription or renew a Subscription via any reseller approved by the Supplier, the End User shall follow the ordering process set out in the relevant agreement between the Supplier and such reseller.
3.6 Where the End User wishes to purchase a Subscription for the Initial Subscription Period and a Renewal Period or more than one Renewal Period and the End User has fully paid the total Fees due for the Initial Subscription Period and subsequent Renewal Period(s) it has ordered, the Subscription will automatically be renewed by the Supplier.
3.7 If the End User wishes to purchase an additional Subscription for a Renewal Period after a Renewal Period or an Initial Subscription Period expires, the End User must follow the ordering process set out in Schedule 5 to this Agreement and submit an Order Form at least twenty (20) Business Days before the expiry of the current Renewal Period or Initial Subscription Period.
3.8 Unless otherwise provided in the Order Form, the following shall apply provided that the duration of a Trial Period, if any, shall not be included into the Total Subscription Period as set forth hereinafter:
(a) Where the End User has ordered a Subscription for the Initial Subscription Period (so that the Total Subscription Period consists of twelve (12) months), the End User must activate the Software within six (6) calendar months from the date of the Order Form.
(b) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and a Renewal Periods (so that the total Subscription Period is for a term of twenty-four (24), thirty-six (36) or more calendar months), the End User must activate the Software within eighteen (18) calendar months of the date of the Order Form.
(c) If the End User fails to activate the Software within the time periods specified in this Section (a) and (b), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
3.9 If additional configuration and testing of the Software for controlling the End User’s Robotics Cell equipment is necessary during the period prior to the Software activation, the Software may be used by Supplier in test mode in accordance with the appropriate Software testing protocol established by the Supplier.
4. DATA
The Supplier shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Data and data derived therefrom) that End User generates, collects and creates, and the Supplier will be free (during and after the term hereof) to:
(a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings;
(b) disclose such data solely in aggregate or other de-identified form in connection with its business.
4.2 The End User will provide the Data to the Supplier as soon as reasonably practicable, but in any event it shall provide the Data to the Supplier on a continuous basis during and after the expiration of the term of this Agreement such that the Supplier holds all of the Data that the End User holds in relation to the Software and its use, testing and assessment by the End User.
The Supplier shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Data and data derived therefrom) that End User generates, collects and creates, and the Supplier will be free (during and after the term hereof) to:
(a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings;
(b) disclose such data solely in aggregate or other de-identified form in connection with its business.
4.2 The End User will provide the Data to the Supplier as soon as reasonably practicable, but in any event it shall provide the Data to the Supplier on a continuous basis during and after the expiration of the term of this Agreement such that the Supplier holds all of the Data that the End User holds in relation to the Software and its use, testing and assessment by the End User.
5. CHANGE REQUEST
5.1 Any Change Requests shall be made by the End User by way of submitting an Order Form to the Supplier and, if approved by the Supplier, any such requested change shall be implemented by the Supplier upon receipt of any relevant Fees in the amounts and on the terms set out in such Order Form.
5.1 Any Change Requests shall be made by the End User by way of submitting an Order Form to the Supplier and, if approved by the Supplier, any such requested change shall be implemented by the Supplier upon receipt of any relevant Fees in the amounts and on the terms set out in such Order Form.
6. MAINTENANCE RELEASE
6.1 The Supplier will provide the End User with all Maintenance Releases generally made available to its end users, and the End User shall give all necessary assistance to the Supplier in installing the Maintenance Releases and/or Updates (if requested) as soon as reasonably practicable after receipt.
6.2 The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
6.1 The Supplier will provide the End User with all Maintenance Releases generally made available to its end users, and the End User shall give all necessary assistance to the Supplier in installing the Maintenance Releases and/or Updates (if requested) as soon as reasonably practicable after receipt.
6.2 The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
7. RAYMENT AND FEES
7.1 Unless otherwise provided in the Order Form, the End User shall make any payments to the Supplier in the amounts set out in the applicable Order Form and in accordance with the Fee Schedule set out in Schedule 4 to this Agreement.
7.1 Unless otherwise provided in the Order Form, the End User shall make any payments to the Supplier in the amounts set out in the applicable Order Form and in accordance with the Fee Schedule set out in Schedule 4 to this Agreement.
8. RAYMENT AND FEES SUPPLIER'S WARRANTIES
8.1 Subject to the limitations and conditions set forth in Section 8.2 and Section 8.3, the Supplier warrants that for 90 (ninety) days following the commencement of the Subscription Period (the "Warranty Period"), the Software will materially function in conformity with the Technical Requirements and Documentation, if installed, operated, and used in accordance with the Technical Requirements, Documentation, and this Agreement. If the Software does not perform as warrantied in this Section 8.1, the Supplier will, in Supplier's sole discretion, use reasonable efforts consistent with industry standards to remedy such defect, provided that the End User notifies the Supplier in writing of such defect before the expiration of the Warranty Period. The foregoing shall be the Supplier’s sole obligation and End User's sole remedy for any breach of the warranty set forth in this Section 8.1.
8.2 The limited warranties set forth in Section 8.1 apply only if the End User is in compliance with all material terms and conditions of this Agreement (including the payment of all Fees and other amounts then due and owing to the Supplier) as of the date of the End User's notification of a defect pursuant to Section 8.1.
8.3 Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 8.1 does not apply to defects arising out of or relating to:
(a) Software, or the media on which they are provided, that are modified or damaged by the End User or its Representatives;
(b) any operation or use of, or other activity relating to, the Software other than as specified in Technical Requirements or Documentation, including any incorporation in the Software of, or combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for End User 's use in the Technical Requirements, unless otherwise expressly permitted by the Company in writing;
(c) End User's or any third party's negligence, abuse, misapplication, or misuse of the Software;
(d) End User's failure to promptly install any Updates that the Supplier has previously made available to End User;
(e) the operation of, or access to, End User's or a third party's system or network;
(f) any Open Source Components or other Third-Party Materials, beta software, software that Supplier makes available for testing or demonstration purposes, temporary software modules, or software for which Supplier does not receive a license fee;
(g) End User's breach of any provision of this Agreement; or
(h) any other circumstances or causes outside of the reasonable control of Supplier (including abnormal physical or electrical stress).
8.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 ALL COMPANY PROPERTIES AND SERVICES, AND ANY OTHER INFORMATION, MATERIALS, OR WORK PRODUCT PROVIDED BY COMPANY ARE PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT ANY SOFTWARE OR OTHER COMPANY PROPERTIES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET END USER’S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THE SOFTWARE ARE MADE DIRECTLY TO END USERS SOLELY UNDER THE TERMS AND CONDITIONS OF THE END USER'S EULA. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN END USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8.1 Subject to the limitations and conditions set forth in Section 8.2 and Section 8.3, the Supplier warrants that for 90 (ninety) days following the commencement of the Subscription Period (the "Warranty Period"), the Software will materially function in conformity with the Technical Requirements and Documentation, if installed, operated, and used in accordance with the Technical Requirements, Documentation, and this Agreement. If the Software does not perform as warrantied in this Section 8.1, the Supplier will, in Supplier's sole discretion, use reasonable efforts consistent with industry standards to remedy such defect, provided that the End User notifies the Supplier in writing of such defect before the expiration of the Warranty Period. The foregoing shall be the Supplier’s sole obligation and End User's sole remedy for any breach of the warranty set forth in this Section 8.1.
8.2 The limited warranties set forth in Section 8.1 apply only if the End User is in compliance with all material terms and conditions of this Agreement (including the payment of all Fees and other amounts then due and owing to the Supplier) as of the date of the End User's notification of a defect pursuant to Section 8.1.
8.3 Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 8.1 does not apply to defects arising out of or relating to:
(a) Software, or the media on which they are provided, that are modified or damaged by the End User or its Representatives;
(b) any operation or use of, or other activity relating to, the Software other than as specified in Technical Requirements or Documentation, including any incorporation in the Software of, or combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for End User 's use in the Technical Requirements, unless otherwise expressly permitted by the Company in writing;
(c) End User's or any third party's negligence, abuse, misapplication, or misuse of the Software;
(d) End User's failure to promptly install any Updates that the Supplier has previously made available to End User;
(e) the operation of, or access to, End User's or a third party's system or network;
(f) any Open Source Components or other Third-Party Materials, beta software, software that Supplier makes available for testing or demonstration purposes, temporary software modules, or software for which Supplier does not receive a license fee;
(g) End User's breach of any provision of this Agreement; or
(h) any other circumstances or causes outside of the reasonable control of Supplier (including abnormal physical or electrical stress).
8.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 ALL COMPANY PROPERTIES AND SERVICES, AND ANY OTHER INFORMATION, MATERIALS, OR WORK PRODUCT PROVIDED BY COMPANY ARE PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT ANY SOFTWARE OR OTHER COMPANY PROPERTIES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET END USER’S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THE SOFTWARE ARE MADE DIRECTLY TO END USERS SOLELY UNDER THE TERMS AND CONDITIONS OF THE END USER'S EULA. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN END USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9. LIMITS OF LIABILITY
9.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL THE COMPANY, THE GROUP COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY, THE GROUP COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY THE END USER TO THE SUPPLIER UNDER THIS GREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.3 The exclusions and limitations in Section 9.1 and Section 9.2 do not apply to: (a) losses arising out of or relating to a Party's breach of its obligations under Section 10 or Section 12; (b) either Party's indemnification obligations under Section 9.9; (c) losses arising out of or relating to a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts; (d) losses for death, bodily injury, or damage to real or tangible personal property; (e) losses to the extent covered by a Party's insurance; or (f) a Party's obligation to pay attorneys' fees and court costs in accordance with Section 14.16.
9.4 The Supplier shall hold the End User harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided the Supplier is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; the Supplier will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service:
(a) not supplied by the Supplier;
(b) made in whole or in part in accordance with End User specifications;
(c) that are modified after delivery by Supplier;
(d) combined with other products, processes or materials where the alleged infringement relates to such combination;
(e) where the End User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
(f) where the End User’s use of the Service is not strictly in accordance with this Agreement.
9.5 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by the Supplier to be infringing, the Supplier may, at its option and expense:
(a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality;
(b) obtain for End User a license to continue using the Service;
(c) if neither of the foregoing is commercially practicable, terminate this Agreement and End User’ rights hereunder and provide the End User a refund of any prepaid, unused fees for the Service.
9.6 End User hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action arising out of or in connection with the End User’s use of the Software, Services, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defense and settlement of such claim, at the End User’s expense; and (iii) the End User is given authority to defend or settle the claim.
9.7 The End User represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Although the Supplier has no obligation to monitor End User’s use of the Services, the Supplier may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
9.8 All dates supplied by the Supplier for the delivery of the Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.9 The End User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Services, Software, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defense and settlement of such claim, at the End User's expense; and (iii) the End User is given authority to defend or settle the claim.
9.10 All references to "the Supplier" in this Section 9 shall, for the purposes of this Section 9, be treated as including all employees, subcontractors and suppliers of the Supplier, any Group Company and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this section, in accordance with Section 9.
9.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL THE COMPANY, THE GROUP COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY, THE GROUP COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY THE END USER TO THE SUPPLIER UNDER THIS GREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.3 The exclusions and limitations in Section 9.1 and Section 9.2 do not apply to: (a) losses arising out of or relating to a Party's breach of its obligations under Section 10 or Section 12; (b) either Party's indemnification obligations under Section 9.9; (c) losses arising out of or relating to a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts; (d) losses for death, bodily injury, or damage to real or tangible personal property; (e) losses to the extent covered by a Party's insurance; or (f) a Party's obligation to pay attorneys' fees and court costs in accordance with Section 14.16.
9.4 The Supplier shall hold the End User harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided the Supplier is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; the Supplier will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service:
(a) not supplied by the Supplier;
(b) made in whole or in part in accordance with End User specifications;
(c) that are modified after delivery by Supplier;
(d) combined with other products, processes or materials where the alleged infringement relates to such combination;
(e) where the End User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
(f) where the End User’s use of the Service is not strictly in accordance with this Agreement.
9.5 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by the Supplier to be infringing, the Supplier may, at its option and expense:
(a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality;
(b) obtain for End User a license to continue using the Service;
(c) if neither of the foregoing is commercially practicable, terminate this Agreement and End User’ rights hereunder and provide the End User a refund of any prepaid, unused fees for the Service.
9.6 End User hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action arising out of or in connection with the End User’s use of the Software, Services, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defense and settlement of such claim, at the End User’s expense; and (iii) the End User is given authority to defend or settle the claim.
9.7 The End User represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Although the Supplier has no obligation to monitor End User’s use of the Services, the Supplier may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
9.8 All dates supplied by the Supplier for the delivery of the Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.9 The End User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Services, Software, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defense and settlement of such claim, at the End User's expense; and (iii) the End User is given authority to defend or settle the claim.
9.10 All references to "the Supplier" in this Section 9 shall, for the purposes of this Section 9, be treated as including all employees, subcontractors and suppliers of the Supplier, any Group Company and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this section, in accordance with Section 9.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The End User acknowledges that all Intellectual Property Rights and any Derivative Works in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases belong and shall belong to the Supplier, and the End User shall have no rights in or thereto other than the right to use it in accordance with the terms of this Agreement.
10.2 The End User may not exercise any right, title and/or interest in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases or any related Intellectual Property Rights, except for the limited usage rights granted to the End User in this Agreement.
10.3 This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases to the End User.
10.4 The End User acknowledges and agrees that the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, release and policy updates and all Derivative Works based on the foregoing are the proprietary property of the Supplier.
10.5 In the event that any Intellectual Property Rights in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases are or become vested in the End User as a result of or pursuant to this Agreement or otherwise, the End User agrees to do any act and execute any document to transfer the ownership thereof immediately to the Supplier.
10.6 The End User shall indemnify the Supplier against all damages, costs and expenses arising from or incurred by reason of any infringement of intellectual property rights in the European Union or elsewhere.
10.1 The End User acknowledges that all Intellectual Property Rights and any Derivative Works in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases belong and shall belong to the Supplier, and the End User shall have no rights in or thereto other than the right to use it in accordance with the terms of this Agreement.
10.2 The End User may not exercise any right, title and/or interest in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases or any related Intellectual Property Rights, except for the limited usage rights granted to the End User in this Agreement.
10.3 This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases to the End User.
10.4 The End User acknowledges and agrees that the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, release and policy updates and all Derivative Works based on the foregoing are the proprietary property of the Supplier.
10.5 In the event that any Intellectual Property Rights in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases are or become vested in the End User as a result of or pursuant to this Agreement or otherwise, the End User agrees to do any act and execute any document to transfer the ownership thereof immediately to the Supplier.
10.6 The End User shall indemnify the Supplier against all damages, costs and expenses arising from or incurred by reason of any infringement of intellectual property rights in the European Union or elsewhere.
11. TERM AND TERMINATION
11.1 The term of this Agreement begins on the Effective Date and shall continue for the term of the Trial Period (if any), the Initial Subscription Period and shall automatically renew for successive Renewal Periods that has been ordered and paid for by the End User until the expiry of the final Renewal Period, unless: (i) either Party provides written notice to the other Party to terminate this Agreement in accordance with Section 11.2 or Section 11.3 or (ii) the End User does not renew the License.
11.2 The Supplier may terminate this Agreement with immediate effect by giving written notice to the End User:
(a) in its sole and absolute discretion by providing thirty (30) calendar days’ notice to the End User at any time;
(b) if the End User fails to pay any amount due under its Subscription and remains in default not less than thirty (30) calendar days’ after being notified in writing to make such payment;
(c) if the End User commits a material breach of any other term of this Agreement; or
(d) if the End User is unable to pay its debts or otherwise enters into an insolvency procedure of any sort.
11.3 The End User may terminate this Agreement by giving thirty (30) calendar days’ notice to the Supplier after receiving notice of an amendment (as permitted under this Agreement) which are materially detrimental to the End User (“Detrimental Amendment”), that for the avoidance of doubt includes an increase in Fees and/or substantial loss of content or functionality in the Services or the Software to the End User's detriment and for which no reasonable substitute is provided), which notice shall not take effect until the date on which such amendment or increase comes into effect and shall not apply retroactively to Order Forms that have come into force.
11.4 On termination for any reason:
(a) the End User shall cease all activities authorized by this Agreement;
(b) the End User shall immediately pay to the Supplier any sums due to the Supplier under this Agreement and the Supplier shall not be required to refund any Fees unless as a result of a breach of the Supplier by way of fraud, willful default or gross negligence or expressly provided for in the Agreement including as set out in Section 3.9.
(c) the End User shall provide to the Supplier all Data and Confidential Information in its possession not already provided, alongside any additional reports relating to the use, testing and assessment of the Software and Services conducted by the End User;
(d) the End User shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control (including as installed on the Robotic Cell and the End User’s local computer) and, in the case of destruction, certify to the Supplier that it has done so;
(e) all activated Subscriptions that are already paid for in full shall continue in effect until the end of their applicable Subscription Period;
(f) the Supplier shall, within sixty (60) calendar days from the date of termination of the Agreement, refund to the End User any Subscription Fees in relation to any Subscriptions that have not been activated with a deduction equal to 50% of (fifty percent) of the full amount of Subscription Fees set out in the Order Form, unless the Parties agree otherwise in writing;
(g) upon termination of the Agreement by the Supplier for whatsoever reason specified in sub-sections (a) and (d) of 11.2, if the End User has pre-paid any Fees in respect of Subscriptions that have been activated already the Supplier’s sole liability to the End User in respect of such termination shall be to refund the pre-paid Fees with a deduction from the pre-Paid Fees for the period of time the End User had use of the pre-paid Subscription for the applicable Subscription Period; and
(h) the Supplier will make all end user data available to the End User for electronic retrieval for a period of thirty (30) days, but thereafter the Supplier may, but is not obligated to, delete any such data.
11.5 No refunds shall be due to the End User in the event of termination due to the End User’s material or continuous breach of this Agreement.
11.6 Any termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11.7 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
11.8 In the event of Termination of this Agreement for any reason whatsoever, Section 1 (Definitions), Section 8 (Supplier’s Warranties), Section 9 (Limits of Liability), Section 10 (Intellectual Property Rights) and Sections from (and including) Section 12 to Section 14 shall survive for as long as necessary to effectuate their purposes, and shall bind the Parties and their respective representatives, successors and assigns.
11.1 The term of this Agreement begins on the Effective Date and shall continue for the term of the Trial Period (if any), the Initial Subscription Period and shall automatically renew for successive Renewal Periods that has been ordered and paid for by the End User until the expiry of the final Renewal Period, unless: (i) either Party provides written notice to the other Party to terminate this Agreement in accordance with Section 11.2 or Section 11.3 or (ii) the End User does not renew the License.
11.2 The Supplier may terminate this Agreement with immediate effect by giving written notice to the End User:
(a) in its sole and absolute discretion by providing thirty (30) calendar days’ notice to the End User at any time;
(b) if the End User fails to pay any amount due under its Subscription and remains in default not less than thirty (30) calendar days’ after being notified in writing to make such payment;
(c) if the End User commits a material breach of any other term of this Agreement; or
(d) if the End User is unable to pay its debts or otherwise enters into an insolvency procedure of any sort.
11.3 The End User may terminate this Agreement by giving thirty (30) calendar days’ notice to the Supplier after receiving notice of an amendment (as permitted under this Agreement) which are materially detrimental to the End User (“Detrimental Amendment”), that for the avoidance of doubt includes an increase in Fees and/or substantial loss of content or functionality in the Services or the Software to the End User's detriment and for which no reasonable substitute is provided), which notice shall not take effect until the date on which such amendment or increase comes into effect and shall not apply retroactively to Order Forms that have come into force.
11.4 On termination for any reason:
(a) the End User shall cease all activities authorized by this Agreement;
(b) the End User shall immediately pay to the Supplier any sums due to the Supplier under this Agreement and the Supplier shall not be required to refund any Fees unless as a result of a breach of the Supplier by way of fraud, willful default or gross negligence or expressly provided for in the Agreement including as set out in Section 3.9.
(c) the End User shall provide to the Supplier all Data and Confidential Information in its possession not already provided, alongside any additional reports relating to the use, testing and assessment of the Software and Services conducted by the End User;
(d) the End User shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control (including as installed on the Robotic Cell and the End User’s local computer) and, in the case of destruction, certify to the Supplier that it has done so;
(e) all activated Subscriptions that are already paid for in full shall continue in effect until the end of their applicable Subscription Period;
(f) the Supplier shall, within sixty (60) calendar days from the date of termination of the Agreement, refund to the End User any Subscription Fees in relation to any Subscriptions that have not been activated with a deduction equal to 50% of (fifty percent) of the full amount of Subscription Fees set out in the Order Form, unless the Parties agree otherwise in writing;
(g) upon termination of the Agreement by the Supplier for whatsoever reason specified in sub-sections (a) and (d) of 11.2, if the End User has pre-paid any Fees in respect of Subscriptions that have been activated already the Supplier’s sole liability to the End User in respect of such termination shall be to refund the pre-paid Fees with a deduction from the pre-Paid Fees for the period of time the End User had use of the pre-paid Subscription for the applicable Subscription Period; and
(h) the Supplier will make all end user data available to the End User for electronic retrieval for a period of thirty (30) days, but thereafter the Supplier may, but is not obligated to, delete any such data.
11.5 No refunds shall be due to the End User in the event of termination due to the End User’s material or continuous breach of this Agreement.
11.6 Any termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11.7 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
11.8 In the event of Termination of this Agreement for any reason whatsoever, Section 1 (Definitions), Section 8 (Supplier’s Warranties), Section 9 (Limits of Liability), Section 10 (Intellectual Property Rights) and Sections from (and including) Section 12 to Section 14 shall survive for as long as necessary to effectuate their purposes, and shall bind the Parties and their respective representatives, successors and assigns.
12. CONFIDENTIALITY AND PUBLICITY
12.1 Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose “Confidential Information”, which is defined in Section 12.3.
12.2 Subject to Section 12.5, the End User shall treat as strictly confidential and shall not by any act or omission disclose to any other person or use or exploit commercially for its own (or that of its Affiliates or Representatives) purposes any Confidential Information.
12.3 For purposes of this Agreement, “Confidential Information” means:
(a) all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, trade secrets, Intellectual Property Rights and any related information, proprietary information, information of a commercial value, application programming interfaces and protocols in respect of the Supplier, and for the avoidance of any doubt, includes the Software, including but not limited to: Abagy Solution, Abagy Offline Solution, Documentation, Software Specifications and Technical Requirements;
(b) any information received or obtained by the End User as a result of entering into or performing this Agreement;
(c) any information received or obtained by the End User from the Supplier either before or during the term of this Agreement relating either directly or indirectly to the business of the Supplier;
(d) any information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, Intellectual Property Rights, know-how, customers, suppliers, processes or affairs of the End User;
(e) any information which is expressly indicated to be confidential by the Supplier; and/or
(f) the existence or any details of this Agreement or the discussions between the Parties in connection therewith;
and includes without limitation analyses, memoranda, compilation studies, plans, notes, extracts or any other way of representing or recording information which contains or is derived from or otherwise reflect or are generated from Confidential Information (“Copies of Confidential Information”).
12.4 Confidential Information does not include:
(a) any information which was lawfully in the possession of the End User (as evidenced by written records) before the disclosure under this Agreement was made; or
(b) any information which is or has come into the public domain through no fault of the End User.
12.5 The Disclosing Party may disclose information which would otherwise be subject to the provisions of Section 12.1 and may retain information referred to in this Section 12.5, if an to the extent:
(a) it is required by any applicable law or enactment to which the End User is subject;
(b) it is required by any Governmental Authority to which the End User is subject or submits, wherever situated, whether or not the requirement for information has the force of law;
(c) it is disclosed on a strictly confidential basis to the Representatives of the End User;
(d) that the Supplier has given prior written consent to the disclosure by the End User; or
(e) was independently developed without use of any Confidential Information of the Disclosing Party;
(f) it is required to enable the End User to perform its obligations under this Agreement or enforce its rights under this Agreement and/or disclosure is required for the purposes of any proceedings;
and provided that to the extent permitted by applicable law any information to be disclosed by the End User in reliance on Section (a) or Section (b) shall be disclosed only after consultation with the Supplier and the End User shall take into account, and to the extent possible, not to take any action in contravention of, the reasonable comments or requests of the Supplier.
12.6 The End User hereby agrees that it shall not use Confidential Information for any purpose other than in relation to the proper performance of its obligations and exercise of its rights under this Agreement (and the transactions contemplated hereby).
12.1 Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose “Confidential Information”, which is defined in Section 12.3.
12.2 Subject to Section 12.5, the End User shall treat as strictly confidential and shall not by any act or omission disclose to any other person or use or exploit commercially for its own (or that of its Affiliates or Representatives) purposes any Confidential Information.
12.3 For purposes of this Agreement, “Confidential Information” means:
(a) all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, trade secrets, Intellectual Property Rights and any related information, proprietary information, information of a commercial value, application programming interfaces and protocols in respect of the Supplier, and for the avoidance of any doubt, includes the Software, including but not limited to: Abagy Solution, Abagy Offline Solution, Documentation, Software Specifications and Technical Requirements;
(b) any information received or obtained by the End User as a result of entering into or performing this Agreement;
(c) any information received or obtained by the End User from the Supplier either before or during the term of this Agreement relating either directly or indirectly to the business of the Supplier;
(d) any information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, Intellectual Property Rights, know-how, customers, suppliers, processes or affairs of the End User;
(e) any information which is expressly indicated to be confidential by the Supplier; and/or
(f) the existence or any details of this Agreement or the discussions between the Parties in connection therewith;
and includes without limitation analyses, memoranda, compilation studies, plans, notes, extracts or any other way of representing or recording information which contains or is derived from or otherwise reflect or are generated from Confidential Information (“Copies of Confidential Information”).
12.4 Confidential Information does not include:
(a) any information which was lawfully in the possession of the End User (as evidenced by written records) before the disclosure under this Agreement was made; or
(b) any information which is or has come into the public domain through no fault of the End User.
12.5 The Disclosing Party may disclose information which would otherwise be subject to the provisions of Section 12.1 and may retain information referred to in this Section 12.5, if an to the extent:
(a) it is required by any applicable law or enactment to which the End User is subject;
(b) it is required by any Governmental Authority to which the End User is subject or submits, wherever situated, whether or not the requirement for information has the force of law;
(c) it is disclosed on a strictly confidential basis to the Representatives of the End User;
(d) that the Supplier has given prior written consent to the disclosure by the End User; or
(e) was independently developed without use of any Confidential Information of the Disclosing Party;
(f) it is required to enable the End User to perform its obligations under this Agreement or enforce its rights under this Agreement and/or disclosure is required for the purposes of any proceedings;
and provided that to the extent permitted by applicable law any information to be disclosed by the End User in reliance on Section (a) or Section (b) shall be disclosed only after consultation with the Supplier and the End User shall take into account, and to the extent possible, not to take any action in contravention of, the reasonable comments or requests of the Supplier.
12.6 The End User hereby agrees that it shall not use Confidential Information for any purpose other than in relation to the proper performance of its obligations and exercise of its rights under this Agreement (and the transactions contemplated hereby).
13. EXPORT AND COMPLIANCE POLICIES
13.1 The End User may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
13.1 The End User may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
14. MISCELLANEOUS
14.1 Further Assurances. Upon a Party's request, the other Party shall, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
14.2 Relationship of the Parties. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person. The relationship of the Parties established by this Agreement is that of independent contractors. Nothing in this Agreement is intended to, shall be deemed or construed to: (a) give either Party the right or power to direct or control the daily activities of the other Party; (b) establish any employment relationship, partnership, joint venture or undertaking between the Parties; (c) constitute any Party the agent of another Party; (d) authorize any Party to make or enter into any commitments for or on behalf of any other Party; and (e) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever; or represent to any person that such Party has any right or power to enter into any binding obligation on the other Party’s behalf.
14.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, in the case of the End User, except as expressly permitted under this Agreement, otherwise use the Supplier's trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the Supplier, which consent the Supplier may give or withhold in its sole discretion.
14.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 14.4:
In the case of the Supplier:
For the attention of: CEO
Address: 6200 Savoy Drive, Suite 1202, Houston, TX 77036
E-mail address: office@abagy.com
In case of the End User, the address and email address included by the End User in the Order Form.
Any notice or other communication required to be given under this Agreement or in connection with the matters contemplated by it shall, except where otherwise specifically provided, be in writing in the English language and shall be deemed served on, or delivered to, the intended recipient:
(a) if delivered by hand, when received, with signed confirmation of receipt; or
(b) if sent by nationally recognized overnight courier, on signature of a delivery receipt or at the time the notice, document or other information is left at the address; or
(c) if sent or supplied by e-mail, one hour after the notice, document or information was sent or supplied if sent during the addressee's normal business hours, and on the next Business Day, if sent after the addressee's normal business hours; or
(d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.5 Entire Agreement. This Agreement, together with the Schedules, any document expressly referred to in any of its terms and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Schedules, any document expressly referred to in any of its terms and any other documents incorporated herein by reference (other than an exception expressly set forth as such therein), the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
14.6 Assignment. The Supplier may assign any of its rights or obligations under this Agreement. The End User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the Supplier's prior written consent, which consent the Supplier may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving the End User (regardless of whether the End User is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which the Supplier's prior written consent is required. No delegation or other transfer will relieve the End User of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
14.7 Force Majeure. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for more than two months, the Party not affected may terminate this Agreement by giving a 30 (thirty) Business Days written notice to the affected Party.
14.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
14.9 Amendment and Modification. The Supplier reserves the right to amend this Agreement at any time in its sole discretion without the consent of the End User, provided that: (i) such changes will be notified by the Supplier to the End User in writing or via the End User’s Personal Account within ten (10) Business Days of the date of the decision to amend; and (ii) if such changes to this Agreement constitute a material change, such notice of change in the terms may not apply to the Subscriptions in relation to which the relevant Order Form has been approved by the Supplier and the full amount of the Subscription Fees has been received by the Supplier. The Supplier has the exclusive right to establish and modify the pricing terms set forth in this Agreement from time to time, except to the extent such modifications do not affect Subscriptions that are fully paid for.
14.10 Waiver. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.11 Severability. If at any time any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable in whole or in part by any judicial or other competent authority, or under any enactment or rule of law in any jurisdiction, then such provision shall: (a) to the extent that it is illegal, void, invalid or unenforceable be given no effect and shall be deemed not to be included in this Agreement, and (b) not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability under the law of any other jurisdiction of such provision or any other provision of this Agreement. The Parties shall use all reasonable endeavors to replace such a provision with a valid and enforceable substitute provision which carries out, as closely as possible, the intentions of the Parties under this Agreement.
14.12 Dispute Resolution. In respect of any dispute, controversy or claim arising out of or in connection with all matters relating to this Agreement, or otherwise (including any question regarding its existence, formation, validity, enforceability, performance, breach or termination or the consequences of nullity) (a “Dispute”), the Parties shall seek in good faith to resolve such Dispute promptly and amicably through negotiations. If for any reason the Dispute is not resolved within 60 (sixty) Business Days of commencement of the negotiations between the Parties to resolve the Dispute, the Dispute shall be referred to and finally resolved in accordance with Section 14.13.
14.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Houston and County of Houston, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
14.14 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14.15 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by the End User of any of its obligations under Sections 2, 4, 10, 12and 13 of this Agreement, would cause the Supplier irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Supplier will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.16 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing Party.
14.17 Counterparts. This Agreement may be executed in counterparts, and by the Parties on separate counterparts, but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but the counterparts shall together constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
14.1 Further Assurances. Upon a Party's request, the other Party shall, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
14.2 Relationship of the Parties. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person. The relationship of the Parties established by this Agreement is that of independent contractors. Nothing in this Agreement is intended to, shall be deemed or construed to: (a) give either Party the right or power to direct or control the daily activities of the other Party; (b) establish any employment relationship, partnership, joint venture or undertaking between the Parties; (c) constitute any Party the agent of another Party; (d) authorize any Party to make or enter into any commitments for or on behalf of any other Party; and (e) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever; or represent to any person that such Party has any right or power to enter into any binding obligation on the other Party’s behalf.
14.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, in the case of the End User, except as expressly permitted under this Agreement, otherwise use the Supplier's trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the Supplier, which consent the Supplier may give or withhold in its sole discretion.
14.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 14.4:
In the case of the Supplier:
For the attention of: CEO
Address: 6200 Savoy Drive, Suite 1202, Houston, TX 77036
E-mail address: office@abagy.com
In case of the End User, the address and email address included by the End User in the Order Form.
Any notice or other communication required to be given under this Agreement or in connection with the matters contemplated by it shall, except where otherwise specifically provided, be in writing in the English language and shall be deemed served on, or delivered to, the intended recipient:
(a) if delivered by hand, when received, with signed confirmation of receipt; or
(b) if sent by nationally recognized overnight courier, on signature of a delivery receipt or at the time the notice, document or other information is left at the address; or
(c) if sent or supplied by e-mail, one hour after the notice, document or information was sent or supplied if sent during the addressee's normal business hours, and on the next Business Day, if sent after the addressee's normal business hours; or
(d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.5 Entire Agreement. This Agreement, together with the Schedules, any document expressly referred to in any of its terms and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Schedules, any document expressly referred to in any of its terms and any other documents incorporated herein by reference (other than an exception expressly set forth as such therein), the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
14.6 Assignment. The Supplier may assign any of its rights or obligations under this Agreement. The End User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the Supplier's prior written consent, which consent the Supplier may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving the End User (regardless of whether the End User is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which the Supplier's prior written consent is required. No delegation or other transfer will relieve the End User of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
14.7 Force Majeure. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for more than two months, the Party not affected may terminate this Agreement by giving a 30 (thirty) Business Days written notice to the affected Party.
14.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
14.9 Amendment and Modification. The Supplier reserves the right to amend this Agreement at any time in its sole discretion without the consent of the End User, provided that: (i) such changes will be notified by the Supplier to the End User in writing or via the End User’s Personal Account within ten (10) Business Days of the date of the decision to amend; and (ii) if such changes to this Agreement constitute a material change, such notice of change in the terms may not apply to the Subscriptions in relation to which the relevant Order Form has been approved by the Supplier and the full amount of the Subscription Fees has been received by the Supplier. The Supplier has the exclusive right to establish and modify the pricing terms set forth in this Agreement from time to time, except to the extent such modifications do not affect Subscriptions that are fully paid for.
14.10 Waiver. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.11 Severability. If at any time any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable in whole or in part by any judicial or other competent authority, or under any enactment or rule of law in any jurisdiction, then such provision shall: (a) to the extent that it is illegal, void, invalid or unenforceable be given no effect and shall be deemed not to be included in this Agreement, and (b) not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability under the law of any other jurisdiction of such provision or any other provision of this Agreement. The Parties shall use all reasonable endeavors to replace such a provision with a valid and enforceable substitute provision which carries out, as closely as possible, the intentions of the Parties under this Agreement.
14.12 Dispute Resolution. In respect of any dispute, controversy or claim arising out of or in connection with all matters relating to this Agreement, or otherwise (including any question regarding its existence, formation, validity, enforceability, performance, breach or termination or the consequences of nullity) (a “Dispute”), the Parties shall seek in good faith to resolve such Dispute promptly and amicably through negotiations. If for any reason the Dispute is not resolved within 60 (sixty) Business Days of commencement of the negotiations between the Parties to resolve the Dispute, the Dispute shall be referred to and finally resolved in accordance with Section 14.13.
14.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Houston and County of Houston, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
14.14 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14.15 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by the End User of any of its obligations under Sections 2, 4, 10, 12and 13 of this Agreement, would cause the Supplier irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Supplier will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.16 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing Party.
14.17 Counterparts. This Agreement may be executed in counterparts, and by the Parties on separate counterparts, but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but the counterparts shall together constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Schedule 1 – Order Form
ORDER FORM
This Order Form is submitted on SPECIFY THE DATE by or on behalf of COMPANY NAME (the “End User”) to ABAGY ROBOTIC SYSTEMS INC, a Delaware Corporation with offices located at 6200 SAVOY DRIVE, SUITE 1202, HOUSTON, TX 77036 (the “Supplier”), further to the End User License Agreement (the “EULA”). Capitalized terms used in this Specification Request Order Form have the meanings assigned to such terms in the EULA. By submitting this Order Form, the End User places the Order with the Supplier for Subscriptions as directly linked to an End User’s Order. This Order Form shall be deemed accepted by the Supplier upon approval by way of issuing an invoice to the End User unless otherwise provided in the EULA. This Order Form must be submitted by or on behalf of the End User per Subscription and per Change Request.
Submission Date PLEASE SPECIFY THE DATE
Approval Date PLEASE SPECIFY THE DATE
1. Company/Organization Information
End User Entity Name please indicate
TAX number please indicate
Registered Address please indicate
Postal Address please indicate
Email please indicate
Telephone please indicate
Bank details please indicate
Responsible Officer Contact Information
Name please indicate
Email please indicate
Telephone please indicate
2. Subscription Details To be filled out by Abagy account manager
Robotic Cell ID: #
Product Name: Abagy Solution Welding Edition
Trial needed ☐ 1 month
Subscription Period: 12 months
Including:
☐ Initial Period
☐ Renewal Period
☐ Change Request
3. Payment Details: Initial Period
4. Payment Details: Renewal Period/Change Request
Signed by Name
Title please indicate
__________________________
for and on behalf of the End User
Title please indicate
__________________________
for and on behalf of the End User
Schedule 2 – Technical Requirements
To be compatible with the Software the Robotic Cell of the End Customer has to meet at least the following technological parameters:
1. Robot equipment requirements
a. Supported manufacturers are: ABB, Fanuc, Kuka. Yaskawa. Acceptable software versions are listed below:
b. Ethernet IP protocol support is mandatory
2. Welding system requirements
a. Welding material feeding (wire, gas, etc) should be performed automatically and connected to the robot controller
3. Internet Requirements
a. End User`s facility should be equipped with at least 100Mbps Internet connection.
b. Internet cable should be located near the Robotic Cell
4. Operator’s PC requirements
a. Hardware requirements:
i. Intel i7 CPU is recommended
ii. 32Gb RAM DDR4 is recommended
iii. SSD-drive is recommended
b. Software requirements:
i. Operating system – any
ii. Chrome-based web browser is mandatory
iii. TeamViewer client installed is mandatory
2. Welding system requirements
a. Welding material feeding (wire, gas, etc) should be performed automatically and connected to the robot controller
3. Internet Requirements
a. End User`s facility should be equipped with at least 100Mbps Internet connection.
b. Internet cable should be located near the Robotic Cell
4. Operator’s PC requirements
a. Hardware requirements:
i. Intel i7 CPU is recommended
ii. 32Gb RAM DDR4 is recommended
iii. SSD-drive is recommended
b. Software requirements:
i. Operating system – any
ii. Chrome-based web browser is mandatory
iii. TeamViewer client installed is mandatory
Schedule 3 – Software Specifications
Capitalised terms used in this Software Specifications Form have the meanings assigned to such terms in the End User License Agreement (the “EULA”) if applicable.
Software Product Characteristics
Abagy Offline (Welding Edition)
Abagy Solution (Welding Edition)
Digital Twin
Option to upload a 3D model of the End User’s Robotic Cell to the End User’s Personal Account and create a digital twin of the Robotic Cell
Personal Account
Option to upload 3D models of welded products to the End User’s Personal Account for purposes of generating robot control programmes
Identification
Automatic identification of welding seams
Welding Procedure Chart
A functionality feature allowing the creation of a welding procedure chart required for welding a product based on an uploaded 3D model, which includes:
- orientation of the product in a Robotic Cell
- selecting seams to be welded
- option to set the welding sequence of seams
- option to set technological parameters or to use parameters provided automatically by the system
- option to group the welds in such a way that equal parameters can be applied to a group
Technology Map
Simulation and animation of the technological process according to the created technology map for the purpose of preliminary verification
Real Work Area
Adaptation of motion paths to variations in the real work area, and placement of parts within the work area during the execution of technological operation. There is no requirement for zero points.
Deviations from 3D Model
Adaptation of motion paths to the deviations of the parts from the 3D model (in the event of non-ideal blank production), uploaded to the personal account during the execution of technological operation. The permissible tolerance limit to deviations is set by the process engineer/technologist of the End User
Analysis
Real-time analysis of operation process of the Robotic Cell
Adaptive Programme
One Adaptive Programme enabling the End User to execute any number of specific production tasks for one specific product as long as the following process remains the same:
Note: A new Adaptive Programme is created when an End User changes any of the elements above.
- the 3D model of a product is used to fulfill the task
- the same technology chart (specific technological production parameters and specific sequence of parts / seams / surfaces to be processed) created by the End User is used for manufacturing of the product;
Note: A new Adaptive Programme is created when an End User changes any of the elements above.
Ready-to-use
Creation of a ready-to-use control programme for welding the product according to the loaded 3D model
Download/Upload
The programme is available for downloading and uploading to the robot controller
Reuse
Saving the generated control programme for later re-use in the production of future copies of the given product
Automatic Adaptation
Automatic adaptation of control programme during the manufacturing process in order to adapt the robot's motion path and welding procedure to the real work area and part deviations from 3D models
Robots
Fanuc, Kuka and Yaskawa
Welding Sources
Fronius, Esab, EWM, Lincoln and Lorch
Adaptability
Adaptability including the option of automatic robot retraining
Deviations
The system can process parts with deviations from 3D model, within the limits accepted by the End User's technical standards
Schedule 4 – Fee Schedule
(a) The following additional definitions shall apply to this Schedule in addition to the Definitions set out in Section 1 of the Agreement:
“Initial Payment”
means a payment: (i) unless otherwise provided in the Order Form payable upfront by the End User to the Supplier, (ii) in relation to the Subscription, including the number of Adaptive Programs set out in the Order Form available to the End User during the Subscription Period, (iii) excluding any Additional Programs available to the End User upon request and for which the Regular Payment shall be due, and (iv) as set out in the Order Form and the invoice provided by the Supplier to the End User in accordance with such Order Form.
“Regular Payment”
means a payment: (i) payable by the End User to the Supplier, (ii) in relation to the number of Additional Programs used by the End User during the relevant billing period, (iii) calculated on a per Additional Program basis, (iv) the payment for which has not been received by the Supplier as part of the Initial Payment, and (v) payable monthly or quarterly in accordance with the relevant Order Form and the invoice provided by the Supplier to the End User in accordance with such Order Form.
“Package Payment”
means a payment unless otherwise provided in the Order Form payable upfront by an End User to the Supplier in the amount equal to the full amount of the Subscription Fees for the Subscription Period in accordance with the relevant Order Form and the invoice provided by the Supplier to the End User in accordance with such Order Form.
(b) If the applicable Order Form provides for Regular Payments in relation to the Initial Subscription Period or any Renewal Period, the End User shall pay the Initial Payment and either the Regular Payment or both.
(c) If the applicable Order Form does not provide for Regular Payments in relation to the Initial Subscription Period or any Renewal Period and the Order Form specifies an Package Payment, the End User shall make the Package Payment 20 (twenty) Business Days prior to the Activation Date, unless the Order Form provides otherwise.
(d) In respect of the Abagy Offline Solution, the Fees shall be payable by the End User monthly or quarterly either during the Initial Subscription Period or any subsequent Renewal Period, in accordance with the invoice terms chargeable per Additional Program and as set out in the Order Form.
(e) The Supplier’s current Fees are available to the End User upon written request but are subject to review and may be changed by the Supplier from time to time.
(f) The Supplier reserves the right to charge additional Fees in cases set out in the Agreement, including where the End User submits a Change Request.
(g) Unless otherwise provided in the Order Form each invoice is payable, in full, within 20 (twenty) Business Days of the date of the invoice.
(h) In the event of any dispute as to the amount of an invoice, the End User shall pay the disputed amount in full pending the resolution of any dispute, and the Supplier shall make any appropriate adjustments upon such resolution without any unreasonable delay.
(i) All payments to be made by the End User under this Agreement are exclusive of value added (or any similar tax, costs or charges) tax (if applicable), sales tax or customs duty which shall, where appropriate, be payable by the End User; and shall be paid free and clear of all deductions or withholdings of any kind.
(j) All amounts are expressed in US dollars or as mutually agreed between the Parties.
(k) If a payment is not made by the due date, except to the extent that any part non-payment relates to a bona fide disputed invoice, without prejudice to any rights or remedies otherwise available, the Supplier reserves the right to: (i) charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at [Bank] or the maximum interest rate permitted by law, whichever is the greater, (ii) terminate the Subscription to use the Software, and/or (iii) disable the End User’s access to the Services, Software, Abagy Solution or Abagy Offline Solution.
(l) The End User shall be responsible for all taxes associated with the Services other than U.S. taxes based on the Supplier’s net income.
Schedule 5 – Order Process
Capitalised terms used in this schedule 5 have the meanings assigned to such terms in the EULA
A. New End User or New Robotic Cell
(m) The End User shall send the Supplier an e-mail expressing a wish to purchase a Subscription.
(n) The Supplier shall provide the End User with the then current Fees and the Agreement, including the Confirmation Request Form as set out in this Agreement.
(o) Where the End User is either: (i) ordering a Subscription from the Supplier for the first time or (ii) ordering a License for a Robotic Cell for which it has not ordered a Subscription previously, the End User shall complete the Confirmation Request Form. For the avoidance of any doubt, the End User’s submission of the Confirmation Request Form to the Supplier shall serve as a confirmation that the End User’s Robotic Cell meets the Technical Requirements.
(p) The Supplier shall review the Confirmation Request Form and advise the End User within 5 (five) Business Days whether or not the Confirmation Request Form has been approved.
(q) Upon approval, the Supplier shall send the End User the Order Form substantially in the form set out in Schedule 1 to this Agreement, which shall specify, among other things, whether an Initial Subscription Fee or Renewal Subscription Fee or a combination thereof or any other Fees are payable by the End User to the Supplier by way of an Initial Payment, any Regular Payments, an Package Payment or a combination thereof including the payment schedule and due dates for payments if applicable.
(r) The End User shall submit a fully completed and signed Order Form for the Supplier’s review and acceptance.
(s) If the Order Form has been accepted, the Supplier shall issue an invoice to the End User specifying the amounts payable by the End User to the Supplier in accordance with paragraph 4 of Part A above or shall notify the End User in writing on the acceptance of the Order Form (if the Order Form provides for a Trial Period).
(t) The End User shall settle the invoice in accordance with the instructions contained therein not later than the due date specified in the invoice and in accordance with the invoice terms.
(u) For any End User purchasing the Subscription for the first time, the Supplier shall within five (5) Business Days of receiving fully completed and signed Order Form under paragraph 7 above: (i) set up such End User’s Personal Account, (ii) provide such End User with a log-in name and password via email allowing such End User access to its Personal Account, and (iii) confirm via email that the Subscription is ready to be activated when purchased.
(v) For any existing End User, the Supplier shall confirm via email that the Subscription is ready to be activated.
(w) The End User shall make an Activation Request within (6) calendar months of receiving a confirmation email from the Supplier as set out in Paragraph 9.
(x) The Supplier shall activate the Subscription and assign a unique License ID (“License ID”) within five (5) Business Days of receiving the Activation Request.
B. Renewal
(a) Unless the Subscription is automatically renewed for a term set out in the original Order Form, the End User shall renew the Subscription as set out below.
(b) The Supplier shall issue an invoice in connection with the renewal to the End User 20 (twenty) Business Days prior to the expiry date of the current Subscription.
(c) The End User shall pay any fees due to the Supplier within 10 (ten) Business Days from the date of the invoice and in accordance with the invoice terms.
(d) Within 2 (two) Business Days of receipt of the payment set out in the applicable invoices, the Supplier shall confirm to the End User that the Subscription has been renewed and activated.
(e) If no payment has been received as set out in paragraph 4 of Part B above, the current Subscription will not be renewed.
(f) In case if the End User has not renewed the Subscription in accordance with paragraph 4 above the End User may request the Supplier to issue the invoice to renew the Subscription within twelve (12) months of the date of expiry of the Subscription. For this purpose, the End User shall send the Supplier an e-mail expressing a wish to renew the Subscription. In such cases, in order to obtain a new Subscription, the End User shall send to the Supplier an Order Form (in the form set out in Schedule 1 to this Agreement) to purchase a Renewal Period (or Renewal Periods) in accordance with the order process set forth in Part A above.
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