SPIDAR® SDK Access and Use Agreement

This Software Development Kit Agreement (this “Agreement“) governs the access to and use of the SPIDAR® Software Development Kit (“SPIDAR® SDK”), including any application programming interface included, provided by Sensors and Software (“Company”) to the you, the user (“User”). This is a legally binding contract between the User and the Company.

By accessing or using the SPIDAR® SDK through the use of the Activation Key, the User (a) acknowledge that the User has read and understands this Agreement; (b) represent and warrants that the User has the right, power, and authority to enter into this Agreement; (c) if the User is agreeing to be bound by the Agreement on behalf of the User’s employer or other entity, the User represents and warrants that the User has full legal authority to bind the User’s employer or such entity to the Agreement; and (d) accepts this Agreement and agrees that the User is legally bound by its terms. If the User do not accept these terms or does not have the requisite authority, the User may not access or use the SPIDAR® SDK.

1. Access and Use.

Subject to and conditioned on the User’s compliance with all terms and conditions set forth in this Agreement, the User is granted, by virtue of its purchase of the Activation Key, a limited, revocable, non-exclusive, non-transferable right to access and use the SPIDAR® SDK solely for the purposes of configuring the firmware in accordance with the SPIDAR® SDK documentation provided together with the Activation Key (“Documentation”).

2. Ownership.

The User acknowledges and agrees that, as between the parties, the Company owns all right, title, and interest in and to the SPIDAR® SDK and/or the associated products and/or software. For the avoidance of doubt, the User agrees that the terms and conditions of sale governing the purchase of any products and/or software and/or services from the Company (“Products and/or Services”) shall, to the extent applicable, apply.

Confidential Information.

3.1. Confidential Information means all secret or confidential information, knowledge, know-how, technical information and/or data relating to the Company and/or its products and/or services including but not limited to the Documentation and the SPIDAR® SDK.

3.2. The User will not use or disclose any Confidential Information, except as necessary for the exercise of its rights under this Agreement. User will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar importance. The User may disclose Confidential Information only to those of its employees and contractors who need to know such Confidential Information for the exercise of User’s rights under this Agreement; provided, that each such employee and contractor first is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.

4. Warranties

4.1. Company warrants the User that the SPIDAR® SDK will operate in substantial conformity with the Documentation. The Company does not warrant that User’s use of the SPIDAR® SDK will be error-free. The Company’s sole liability (and User’s exclusive remedy) for any breach of this warranty will be, to use commercially reasonable efforts to provide User with an error-correction or work-around which corrects the reported non-conformity. The above warranty will not apply: (a) if the SPIDAR® SDK is used with hardware or software not specified in the Documentation; (b) if any modifications are made to the Products and/or Services by User or any third party; (c) to defects is due to accident, abuse or improper use of the Product and/or Services by User.

4.2. Except as expressly provided in this agreement, the Company furnishes, and the User accepts, the SPIDAR® SDK and proprietary information as-is, with no representations, conditions, warranties or terms, express or implied, by statute, common law or otherwise, regarding the SPIDAR® SDK and proprietary information, their fitness for a particular purpose, merchantability, satisfactory quality, title, non-infringement, or otherwise, to User, User’s end users or any third party. To the maximum extent permitted by law, the stated express warranties are in lieu of all obligations or liabilities on the part of the Company arising out of, or in connection with, any Company product or proprietary information.

 
4.3. In connection with User’s activities under this Agreement, including, the extent as may be applicable, the User’s distribution of the Product and/or Services incorporated in its own products and/or services (“Applications”) to end users, the User shall, in a manner that protects both the Company and the User, (i) disclaim liability and implied warranties to the same extent disclaimed by the Company under this Agreement, and (ii) make no warranty or representation binding upon the Company.

5. Limitation of Liability.

5.1. In no event shall either party or its suppliers be liable for any special, incidental, indirect or consequential or punitive damages, however caused and regardless of the theory of liability (including damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) relating in any way to this Agreement, the SPIDAR® SDK, object code, proprietary information, or the commercial relationship of the parties, regardless of whether the parties have been advised of the possibility of any such loss and regardless of the course of dealing which develops or has developed between the parties.

5.2. The foregoing limitations will apply even if the above stated warranties fail of their essential purpose.

6. Indemnity.

6.1. The Company shall defend, indemnify and hold harmless the User from and against any all third-party claims, liabilities, damages or expenses (including reasonable attorney’s fees) in connection with or which result from a claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against the User by a third party based upon User’s use of the SPIDAR® SDK in accordance with the terms of this Agreement. If User’s use of any of the SPIDAR® SDK is enjoined due to the type of infringement specified above, or if required by settlement, the Company may, in its sole discretion: (a) substitute for the SPIDAR® SDK substantially functionally similar programs and documentation; (b) procure for User the right to continue using the SPIDAR® SDK; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement. The foregoing indemnification obligation of Company will not apply: (1) if the SPIDAR® SDK is modified by the User or its subcontractors; (2) if the SPIDAR® SDK is combined with other non- Company products (including the Application), but solely to the extent that the alleged infringement is caused by such combination; (3) to any unauthorized use of the SPIDAR® SDK; (4) to any unsupported release of the SPIDAR® SDK by the User.

6.2. User shall defend, indemnify and hold harmless the Company from and against any and all third-party claims, liabilities, damages or expenses (including reasonable attorney’s fees) in connection with or which result from (i) any claim of infringement of a third party’s intellectual property rights with respect to any Applications.

6.3. This section sets forth each party’s and its suppliers’ sole liability and the other party’s sole and exclusive remedy with respect to any claim of intellectual property infringement.

7. General.

7.1. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario and shall be treated, in all respects as an Ontario contract. Each Party to this transaction irrevocably submits to the jurisdiction of the Courts of Ontario with respect to any matter arising under or relating to this Agreement.

7.2. The waiver of a breach of any term or condition of the Agreement will not constitute the waiver of any other breach of the same or any other term. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. If any provision of the Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision.

7.3. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

7.4. Customer agrees that it shall not disclose to any third party any Confidential Information pertaining to the Products and/or Services provided hereunder.