End User License Agreement

End User License Agreement Version 1.0.1 Date Oct 1st 2015

This End User License Agreement (“EULA”) is a legal agreement between the end-user Customer of Luxar Tech hardware and software products (“Customer”) and Luxar Tech Inc. (“Luxar Tech”) regarding Customer’s use of the Software (as defined below).

Luxar Tech is willing to license the Software to Customer upon the condition that it accepts and complies with the terms contained in this EULA plus any additional terms in any supplemental license accompanying Luxar Tech Software where Customer accepts such supplemental license at the time of download (the “Supplemental Terms”, together with the EULA, the “Agreement”).

To the extent of any conflict between the terms of this EULA and any Supplemental Terms, the Supplemental Terms will apply to the applicable Software. Customer’s use, installation, or access of the Products constitutes agreement with and acceptance of this Agreement.

  • a. “Certified White Box Hardware” means the third party, non-Luxar Tech hardware products that Luxar Tech has certified to run Software under Luxar Tech’s white box solution program.
  • b. “Luxar Tech Hardware” means the Luxar Tech-branded hardware products, purchased from Luxar Tech directly or through an authorized Luxar Tech channel partner (“Approved Source”) that may include Software and expressly excludes third party non-Luxar Tech branded hardware products that may run Software.
  • c. “Products” means, the Software, the Luxar Tech Hardware, and/or any combination thereof. d. “Software” means the object or binary code or firmware, any accompanying documentation, and any upgrades or updates therefor, that are provided by Luxar Tech or an Approved Source on Luxar Tech’s behalf, and either are (i) included with or embedded in the Luxar Tech Hardware, or (ii) provided as a stand-alone software product. For the avoidance of doubt, Software expressly excludes third party software.

Subject to and conditioned upon Customer’s compliance with the restrictions and terms set forth in the Agreement and full payment of any applicable fees, unless otherwise set forth in the applicable Supplemental Terms:

  • a. Luxar Tech hereby grants Customer a non-exclusive, non-sublicensable (except as expressly set forth in Section 2(b) below), non-transferable (except as specified in Section 10 below) worldwide license to (i) use the Software in object code format solely with the Luxar Tech Hardware or, if applicable, the Certified White Box Hardware, for Customer’s internal business purposes only; and (ii) transfer the Software solely as incorporated in the Luxar Tech Hardware or Certified White Box Hardware and solely in connection with the sale of such Luxar Tech Hardware or Certified White Box Hardware, as applicable; and
  • b. Luxar Tech further hereby grants to Customer the right to sublicense Customer’s rights under Section 2(a)(i) to Customer’s contractors and subcontractors without further sublicense rights; provided that (i) such sublicensed rights are for the sole purpose of providing services to Customer and are subject to all of the limitations set forth in the Agreement; and (ii) Customer will be liable for any actions of, or failure to act by, the contractors and subcontractors as if such actions or inactions were Customer’s.

Customer will not, nor will it allow or authorize any third party to:

  • a. copy, duplicate, disclose, distribute, modify, sublicense (except as expressly set forth in sub-section 2(b) above), license, transfer (except as expressly permitted herein in connection with the sale to a third party of Luxar Tech Hardware or a Certified White Box Hardware), or exploit or create derivative works of the Products or permit any third party to do so;
  • b. use, transfer, or distribute the Software in competition with Luxar Tech;
  • c. decompile, reverse translate, disassemble, or reverse engineer the Software or cause the Software to be subject to any open source obligations or release; Luxar Tech End User License Agreement (EULA) 6-2015 Page 2 of 4
  • d. remove any proprietary markings or copyright notices from any Luxar Tech Hardware or Software, or translate the Software into any other format or language without Luxar Tech’s prior written consent; e. publicly display, transmit or use supporting documentation for any other purpose other than to support Customer’s authorized use of the Products within its internal organization; or f. create, disclose, distribute, sublicense, license or otherwise transfer any implementation of Luxar Tech’s application programming interfaces (APIs) except to support Customer’s authorized use of the Products within its internal organization.

The license granted in this Agreement is not a transfer or sale of Luxar Tech’s or its licensors’ ownership rights in the Software or its intellectual property. Except for the license specifically granted in this Agreement, Luxar Tech retains all right, title, and interest in and to the Software, the related source code and intellectual property, and any and all modifications or derivatives. The Software is confidential to Luxar Tech and protected by applicable trade secret and intellectual property laws.

The Software may contain or be distributed with third party software covered by an open source software license that supersedes the licensing terms of this Agreement to the extent required by that open source license (“Open Source Code”). All open source software is provided WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Further, notwithstanding any language contained in the Agreement, Luxar Tech has no obligation to defend, indemnify or hold Customer harmless from and against any claim that any Open Source Code infringes any intellectual property right, nor will Luxar Tech be liable for any damages, costs, or expenses incurred in connection therewith. If, and to the extent required by the applicable open source license, Luxar Tech will make available the required source code for the open source software in response to Customer’s request emailed to legal@Luxar Tech.com.

For ninety (90) days from the date the Software is downloaded by the Customer or shipped to the Customer by Luxar Tech or an Approved Source, Customer is entitled to all Luxar Techprovided software updates (bug fixes, maintenance releases, and feature upgrades) for the purchased the Software. In addition, Luxar Tech offers a Limited Hardware and Software Warranty for its Products. Details and current documentation for both are found at http://www.Luxar Tech.com/support-and-services/overview-and-benefits. All other Software maintenance and support is provided to Customer separately and for a fee.

Customer has the sole obligation to manage, secure, and oversee its network and tools, and, provide notices, as necessary, to its users that their use of Customer’s computers, electronic appliances, and devices (and those of users on Customer’s network) may be monitored, inspected, or decrypted.

EXCEPT AS SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE PRODUCTS TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED. LUXAR TECH MAKES NO REPRESENTATIONS AND UNDERTAKES NO INDEMNIFICATION OBLIGATIONS REGARDING, ARISING FROM, OR RELATED TO THE LEGALITY OF MONITORING OF NETWORKS OR INFORMATION IN A PARTICULAR JURISDICTION, AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THAT CUSTOMER’S PROPOSED OR ACTUAL USE OF THE PRODUCTS COMPLIES WITH APPLICABLE LAWS. CUSTOMER ACKNOWLEDGES AND AGREES THAT LUXAR TECH WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM:

(A) THE USE OF THE PRODUCTS BY CUSTOMER OR THIRD PARTIES;

(B) SECURITY BREACHES;

(C) EAVESDROPPING, INTERCEPTION, FAILURE OF DELIVERY OR LOSS OF DATA SENT, STORED, OR RECEIVED USING THE PRODUCTS; OR

(D) ANY CERTIFIED WHITE BOX HARDWARE. THESE LIMITATIONS APPLY EVEN IF LUXAR TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LUXAR TECH AND ITS LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NONINFRINGEMENT, NON- INTERFERENCE WITH THE ENJOYMENT OF THE HARDWARE, AND FITNESS FOR A PARTICULAR PURPOSE.

Customer acknowledges and agrees that, if Customer obtains Certified White Box Hardware, Luxar Tech makes no endorsements of and provides no warranties or support with respect thereto. Customer assumes all risk related to as well as all responsibility for the selection and use of the Certified White Box Hardware and should contact the applicable third party hardware provider or such third party’s agent for support and warranty related information.

This Agreement is effective as of the date of Customer’s first use or access, or installation of the Software and remains in effect until Customer’s failure to comply with any term of this Agreement, including any failure to pay license fees, if applicable. Customer may terminate the License Grant section of this EULA at any time upon written notice to Luxar Tech that it has transferred or sold to a third party the Luxar Tech Hardware or the Certified White Box Hardware containing the Software. Any such termination will not entitle Customer to a refund for any Products or for Support and Maintenance, which is not transferable. Luxar Tech’s rights and Customer’s obligations survive the termination of this Agreement. Upon termination of this Agreement and upon Luxar Tech’s request, Customer will certify in writing to Luxar Tech that all instances and copies of the Software, or any portion thereof (other than firmware), have either been returned to Luxar Tech or otherwise destroyed or deleted from any of its devices or storage devices.

UNDER NO CIRCUMSTANCES WILL LUXAR TECH BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR INFORMATION, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF LUXAR TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN EXCLUSIVE REMEDY. IN NO EVENT WILL LUXAR TECH’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCTS AT ISSUE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATION SET FORTH IN THIS PARAGRAPH MAY NOT APPLY.

Customer will keep current, complete, and accurate records regarding the installation and use of the Software. Customer will provide such information to Luxar Tech and certify that it has paid all related fees, if applicable, within five business days of any written request, so long as Luxar Tech does not make more than one request during any 12- month period. Except to the extent prohibited by applicable law, Customer will, after reasonable prior notice from Luxar Tech, provide Luxar Tech with reasonable access to its premises, records, and personnel so that Luxar Tech or its designee may audit and confirm compliance with this Agreement. If an audit reveals any non-permitted reproduction, installation, or use of the Software, Customer will (i) promptly comply with this Agreement, (ii) pay the additional fees (at Luxar Tech’s then-current rates) due plus interest at the rate of 1.5% per month, and (iii) promptly reimburse Luxar Tech for its reasonable costs of conducting the audit if the audit reveals noncompliance.

Customer will defend, indemnify, and hold harmless Luxar Tech (including its officers, employees, directors, subsidiaries, representatives, affiliates, agents, and licensors) from and against any damages (including reasonable attorney’s fees and expenses), claims, and lawsuits that arise or result from Customer’s breach of any provision of this Agreement.

Luxar Tech, its logo, and all other names, logos, or icons identifying Luxar Tech and its programs, products, and services are proprietary, and any use of identical or confusingly similar marks, including as domain names, without Luxar Tech’s express written permission is strictly prohibited. If Customer provides any feedback to Luxar Tech concerning the functionality and performance of the Products (including identifying potential errors, enhancements, and improvements) (“Feedback”), Customer hereby assigns to Luxar Tech all right, title, and interest in and to the Feedback. Luxar Tech may use Feedback without any payment or restriction.

The Products are subject to U.S. export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Customer will comply with all applicable laws and regulations regarding use of the Products, including all U.S. export control laws and regulations as well as those of any country of import and/or export. Customer covenants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products or technology received from Luxar Tech to any Luxar Tech End User License Agreement (EULA) destination, entity, or person prohibited by the laws or regulations of the United States. In addition, Customer may not use the Products for any end-use prohibited by the laws or regulations of the United States without obtaining prior authorization from the competent government authorities as legally required. Customer will indemnify, to the fullest extent permitted by law, Luxar Tech from and against any fines or penalties that may arise as a result of its breach of this Section. This Section will survive indefinitely.

This Section applies to all acquisitions of the Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the federal government. By accepting delivery of the Software, the government hereby agrees that this software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement will pertain to the government’s use and disclosure of the Software, and supersede any conflicting contractual terms and conditions. If this Agreement fails to meet the government’s needs or is inconsistent in any way with Federal law, the government agrees to return the Software, unused, to Luxar Tech. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): Restricted Rights – Use, duplication, and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT. 1988).

Customer acknowledges that (a) the Software is confidential and proprietary to Luxar Tech and contains valuable trade secrets; (b) any breach, threatened or actual, of this Agreement will cause irreparable injury to Luxar Tech; (c) such injury would not be quantifiable in monetary damages; and (d) Luxar Tech would not have an adequate remedy at law in the event of such a breach or threatened breach. Customer therefore agrees that Luxar Tech will be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Customer’s obligations under any provision of this Agreement. Accordingly, Customer hereby waives any requirement that Luxar Tech post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Luxar Tech to enforce any provision of this Agreement.

Except for the right of Luxar Tech to apply to a court of competent jurisdiction for equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in Alameda county, California, U.S.A. under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with the Rules. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration.

This Agreement is governed by the laws of the State of California, without reference to its conflict of laws principles. Except as set forth above, any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Alameda county, California, U.S.A. This Agreement is the entire agreement between Customer and Luxar Tech and supersedes any other communications with respect to the Software. Additional or conflicting terms on any purchase order or other document issued by Customer or any Approved Source will have no force or effect. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full. No waiver by either party of any rights under the Agreement will be effective unless such waiver is in a writing signed by the party against whom enforcement is sought. Any notices relating to this Agreement should be sent via receipted delivery to Luxar Tech Inc.