End-User License Agreement

READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE YOU CLICK ON THE “ACCEPT” BUTTON OR OTHERWISE USE THE PRODUCT. BY CLICKING ON THE “ACCEPT” BUTTON AND SELECTING AND UTILIZING THE LICENSED SOFTWARE AND/OR HARDWARE, INCLUDING ANY UNDERLYING SERVICES, OR ANY TECHNOLOGY, IDEA, DATA AND DATABASES, ALGORITHM OR INFORMATION CONTAINED THEREIN OR PROVIDED THEREWITH (COLLECTIVELY, THE “PRODUCTS”). CLICKING “I AGREE” OR OTHERWISE DOWNLOADING, INSTALLING AND/OR USING THE PRODUCTS ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE PRODUCTS, EITHER ON BEHALF OF YOURSELF OR ANY THIRD PARTY ENTITY (“YOU” OR "LICENSEE") AND OWL LABS INC. (“OWL LABS”), YOU (WHETHER AN INDIVIDUAL OR FORMAL LEGAL ENTITY) (HEREINAFTER REFERRED TO AS “YOU”), AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH RESPECT TO YOUR USE OF THE PRODUCTS.

BY INSTALLING AND/OR BY USING THE PRODUCTS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THAT THE PRODUCTS WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE PRODUCTS ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS, REPRESENTS, AND COVENANTS TO OWL LABS THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE ORGANIZATION TO THEM.

Your use of (a) the website located at www.owllabs.com (the “Site”) (b) services through the Site (and any updates thereto) (“Site Services”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Software”) is governed by Owl Labs Terms of Service (found at owllabs.com/legal) This Agreement does not govern your use of the Site, Site Services, or Mobile Software.

IN THE EVENT CUSTOMER HAS EXECUTED A SEPARATE MASTER AGREEMENT WITH OWL LABS, OR A OWL LABS AUTHORIZED RESELLER, SUCH MASTER AGREEMENT SHALL INSTEAD GOVERN THE PARTIES’ RESPECTIVE RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SUBJECT MATTER SET FORTH HEREIN.

1. Grant of Rights

1.1 License; Copies. Subject to the terms and conditions of this Agreement, Owl Labs hereby grants to Licensee a non- exclusive, non-transferable, license (without the right to grant sub-licenses) to execute and use hardware and the object code version of Owl Labs’ proprietary software products and any third party software licensed to Owl Labs and provided to Licensee (collectively, the “Product,” which includes any updates and upgrades of software provided as part of Owl Labs support and maintenance services), as specified in an order submitted by Licensee and accepted by Owl Labs (each, an “Order”), solely for Licensee’s own internal business operations, in accordance with the related documentation, and in accordance with the license term, scope and type of use set forth in such Order. All software provided may only be used on the particular hardware device provided by Owl Labs. Licensee may not, and may not allow others to, use any software except for the software provided by Owl Labs on or in connection with the Product (except for the Site Services and Mobile Software), except to the extent required by applicable terms and conditions in connection with open source software provided with the Product.

Any use of third party software provided as part of the Product shall be governed by such third party’s terms and conditions, as identified in Owl Labs’ then-current documentation or otherwise notified to Licensee in writing. If required by any license for particular open source software, Owl Labs makes such open source software, and Owl Lab’s modifications to that open source software, available by written request to Owl Labs. Any such third party terms shall take precedence over the terms of this Agreement, which shall solely govern Licensee’s rights and obligations with respect to such third party software.

1.2 Restrictions. Except as otherwise expressly provided in this Agreement (or where such restrictions are prohibited by law), Licensee shall have no right, and Licensee specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person, or use any software delivered by Owl Labs on any other hardware; (ii) make error corrections or otherwise modify or adapt the Product or create derivative works based upon the Product, or to permit third parties to do so; (iii) rent, lease, loan or use the Product as a service bureau, as an application service provider, to perform consulting or training services for a third party or in any commercial time share arrangement; (iv) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Product or any part thereof to human-readable form to gain access to trade secrets or confidential information in the Product; (v) use the Product in contravention to any applicable laws or government regulations; or (vi) remove any product identification, trademark, copyright or other notices contained in or on the Product. Further, Licensee is not licensed to, and shall not, install any other product or software on the Product delivered by Owl Labs, nor may Licensee de- install the software from the device.

1.3 Ownership. Owl Labs and its suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retain all rights, title and interest in and to the Product. Licensee acknowledges and agrees that this Agreement in no way shall be construed to provide to Licensee, or any third party, any express or implied license to use, copy or otherwise exploit the Product or any portion thereof, (including any intellectual property embodied therein) other than as specifically set forth in this Agreement. Without limiting the foregoing, Licensee may not sublicense or otherwise distribute the Product or any portion thereof to any affiliate or any other third party, unless otherwise authorized by Owl Labs in writing.

1.4 Remote Diagnostics. Licensee agrees that the Product may (i) transmit to Owl Labs technical and related information about Licensee’s use of the Product which may include, without limitation, system performance, capacity usage, hardware faults, internet protocol address, hardware identification, operating system, application software, peripheral hardware, and other non- personally identifiable Product usage statistics to trouble shoot the Product, as well as (ii) facilitate the provisioning of updates, upgrades, support, invoicing or online services (including the provision of notices from Owl Labs to Licensee via the Product), and to enhance, improve, and develop current and future Owl Labs products and services. Such transmissions and/or notices may be on a daily or other periodic basis, or upon a failure or crash of the Product. Licensee also agrees that Owl Labs may transfer such information to Owl Labs affiliates and partners from time to time, provided, however, in no event will Owl Labs share any such information to an Owl Lab partner who is not also a partner, reseller or distributor of Licensee, with whom Licensee has a direct relationship.

1.5 Automatic Software Updates. Owl Labs may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or otherwise modify the performance of the Product and related services (“Updates”). These Updates may affect or erase data on the Product or change or reset settings on the Product. These Updates may be automatically installed without providing any additional notice or receiving any additional consent if Licensee has connected the Product to the Internet. Licensee consents to these automatic Updates. If Licensee does not want these Updates, do not connect the Product to the Internet or to a mobile device. Licensee acknowledges that it may be required to install Updates in order for the Product (or any component thereof) to operate properly and to access all updated features of the Product. In certain circumstances Licensee may be entitled to request removal or disabling of Updates; however, Owl Labs is not responsible for providing support to Products that do not contain Updates. If Owl Labs provides further notice or request further consent to an Update, the notice or consent may be received or provided by any permitted user of the Product or the Site Services. The user receiving the notice or providing consent is responsible for notifying all other users. Licensee’s continued use of the Product is confirmation of ongoing consent and acknowledgement to the terms and conditions of this Agreement.

1.6 Maintenance and Support. Upon payment of applicable fees, Owl Labs will provide maintenance and support services to Licensee in accordance with Owl Labs’ maintenance and support policy, set forth at owllabs.com/legal.

2. Infringement Indemnity; Warranty

2.1 Indemnification. Subject to the limitations set forth in this Section 2, Owl Labs shall defend, or at its option, settle any claim or action against Licensee and hold Licensee harmless from any and all liabilities, damages, expenses, settlements and costs (including reasonable attorney’s fees) finally awarded against Licensee, arising from or occurring as a result of any third party claim or action alleging that the Product infringes any United States patent or copyright. Owl Labs’ obligation to indemnify Licensee under this Section 2 shall be subject to Licensee: (i) promptly notifying Owl Labs in writing promptly upon first learning of the claim or action giving rise to the indemnity; (ii) providing Owl Labs with sole and exclusive control over the defense and/or settlement of such action or claim; and (iii) providing Owl Labs with proper and full information and reasonable assistance to defend and/or settle any such claim or action. Owl Labs shall not be responsible for indemnifying Licensee with respect to costs incurred, or amounts paid in any settlement, unless Owl Labs approved such costs or settlements in advance. If Licensee’s use of the Product becomes enjoined, Owl Labs may at its sole option: (i) procure, at no cost to Licensee, the right to continue using the Product; (ii) replace or modify the Product to render them non-infringing; or (iii) if, in Owl Labs’ reasonable opinion, neither (i) nor (ii) above are commercially feasible, immediately terminate Owl Labs’ obligations (and Licensee’s rights) under this Agreement with regard to such Product, and, if Licensee returns such Product to Owl Labs, refund to Licensee (a) for perpetual licenses, the price originally paid by Licensee to Owl Labs for such Product as depreciated or amortized by an equal annual amount over five (5) years, or (b) for subscription, prepaid fees for the remainder of the subscription term, on a pro rata basis.

2.2 Exceptions; Sole Remedy. Owl Labs will have no liability under this Section 2 for any claim or action where such claim or action results from (i) combination, operation or use of the Products with other hardware or software not provided by Owl Labs; (ii) modification of the Product unless such modification was made or authorized by Owl Labs in writing; (iii) compliance with Licensee’s designs, specifications or instructions; or (iv) Licensee’s use of the Product in any manner inconsistent with the terms of this Agreement or any document provided by Owl Labs. Notwithstanding anything to the contrary, Owl Labs shall not be liable for any claim based on Licensee’s use of the Product after Owl Labs has informed Licensee of modifications of the Product required to avoid such claims and offered to implement those modifications, if such claim would have been avoided by implementation of such modifications. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF OWL LABS AND THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

2.3 LIMITED WARRANTY; RETURN POLICY. Owl Labs warrants to Licensee that the Product shall be free from defects in both materials and workmanship and shall materially conform to the standard Product documentation (found atowllabs.com/support) during the Warranty Period set forth below. If Licensee notifies Owl Labs during the Warranty Period that the Product does not conform to the foregoing warranty, Owl Labs agree, at its option, to repair or replace the Product free of charge. The Warranty Period is two (2) years from the date of purchase. We will ask the licensee to please provide proof of purchase with any warranty claim. If Owl Labs determine in its sole discretion that the warranty claim is valid and Owl Labs issues a Return Merchandise Authorization (“RMA”) to Licensee, the Product should be returned to Owl Labs within fifteen (15) days of Licensee’s receipt of the RMA to the location specified by Owl Labs. If Owl Labs customer support determines that Licensee has a valid warranty claim, Owl Labs will pay for shipping and handling of the returned Product. Please package the Product carefully as the Product will be returned to Licensee in the same cosmetic condition it was received by Owl Labs. Owl Labs will exercise commercially reasonable efforts to have the replaced or repaired Product returned to Licensee within four (4) weeks after Owl Labs’ receipt of the returned Product.

Return procedure:

Owl Labs warrants any replaced, repaired or remanufactured Product or part for ninety (90) days from the date of shipment of the Product to Licensee, or the remainder of the initial warranty period, whichever is longer.

THIS WARRANTY IS VOID IF:

The Product has been damaged by negligence, accident, act of God, or mishandling, or has not been operated in accordance with the procedures described on owllabs.com/support, or; the Product has been altered or repaired by someone other than Owl Labs or an authorized service partner, or; adaptations or accessories other than those manufactured, recommended or provided by Owl Labs have been made or used with the Product, or; failure to adequately package the Product for transportation, or; the software on the Product has been replaced or modified by anyone other than the Owl Labs or an authorized service partner, or; the Product has been taken or used outside of the country it was purchased, or; the Product’s original serial number has been modified or removed. Any issue that can be attributed to using browsers, operating systems or video conferencing platforms that are unsupported, will not be covered by this warranty. Supported browsers, operating systems and video conferencing platforms can be found on owllabs.com/support.

NO OTHER WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLIES TO THE PRODUCT. YOUR SOLE REMEDY AND OUR SOLE OBLIGATION FOR A NON-CONFORMING OR DEFECTIVE PRODUCT SHALL BE THE WARRANTY REMEDIES SET FORTH IN THIS WARRANTY STATEMENT ABOVE.

This warranty extends only to the original licensee and is not assignable or transferable.

 

 

3. Limitation of Liability.

THE TOTAL LIABILITY OF OWL LABS AND ITS SUPPLIERS AND CONTRACTORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE TO OWL LABS FOR THE PRODUCT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IN NO EVENT SHALL OWL LABS OR ITS SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS (INCLUDING WITHOUT LIMITATION DUE TO A MALFUNCTION OR DEFECT IN THE PRODUCT), LOST PROFITS, OR LOST DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, EVEN IF OWL LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

4. Your Indemnity.

You agree to indemnify, defend, and hold Owl Labs, its affiliates, contractors, employees, agents and its affiliates, suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Products, your communications, transactions, or dealings with third parties initiated through the Products, your violation of this Agreement or the Terms of Service or any law or regulation, or any breach of the representations, warranties, and covenants made by you to Owl Labs. Owl Labs reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Owl Labs, and you agree to cooperate with our defense of these claims. Owl Labs will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

5. Termination

5.1 By Either Party. Owl Labs shall have the right to terminate this Agreement, and/or any licenses granted herein, without liability, in the event Licensee (i) fails to cure a material default under this Agreement within thirty (30) days of Owl Labs sending Licensee a default notice, or (ii) becomes insolvent or takes any action to wind-up, liquidate or otherwise cease doing business. In addition, this Agreement and all licenses granted hereunder shall automatically terminate if Licensee transfers the Product to a third party.

5.2 By Licensee. Licensee may terminate this license at any time for any reason, upon written notice to Owl Labs.

5.3 Effect of Termination. Upon any termination of this Agreement or an Order, for any reason, all applicable licenses are also terminated, and Licensee shall immediately cease use of the Product and shall return the Product to Owl Labs. However, if this Agreement is terminated, but not any outstanding Orders, the terms and conditions of this Agreement shall continue to govern any such Orders. Termination of the term of this Agreement or an Order shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued, have been paid, or have become payable by Licensee hereunder.

5.4 Survival. The provisions of Sections 1.4, 2.2, 3, 4, 5.3, 5, 6 and 7 shall survive termination of this Agreement.

6. Confidentiality.

Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, customer information, marketing plans, hardware, software and unannounced product information (collectively, “Confidential Information”). Such Confidential Information, if in writing, shall be marked prominently with the legend “confidential”, “proprietary”, or with a similar legend, or if disclosed orally shall be described as Confidential Information at the time of oral disclosure. However, regardless of any marking or subsequent summary, information disclosed shall be considered confidential if a reasonable person under the circumstances would understand such information to be of a confidential nature. Notwithstanding anything to the contrary herein, the Product, Documentation and non-public information shall be deemed Confidential Information. A party shall not use or disclose Confidential Information of the other, except as expressly authorized by this Agreement or in writing by the disclosing party, using the same degree of care which receiving party uses with respect to its own proprietary information, but in no event with less than with reasonable care. The foregoing obligations of confidentiality shall not apply to any information that the receiving party can show is or was (i) already known to the receiving party at the time of disclosure without obligation of confidentiality; (ii) independently developed by the receiving party without use of or access to the other party’s Confidential Information; (iii) approved for disclosure by the disclosing party beforehand and in writing; (iv) publicly known without breach of this Agreement; (v) lawfully received by receiving party from a third party without obligation of confidentiality; or (vi) required to be disclosed by applicable law or order of a court, tribunal or other governmental agency; provided, however, that the receiving party shall promptly notify the disclosing party in writing of such requirement, and shall cooperate with the disclosing party to minimize the scope of any such disclosure, and in the obtaining of a confidentiality, protective or similar order.

7. General Provisions.

(a) This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The UN Convention on Contracts for the International Sale of Goods shall not apply. (b) This Agreement and all Orders agreed by the parties are the entire agreement of the parties, and supersedes all prior agreements and communications, written or oral, between the parties with respect to the subject matter of this Agreement. The terms and conditions of any purchase orders or invoices issued by a party shall not be binding even if accepted by the other party. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by authorized officers of each party. No delay or omission to exercise any right or remedy accruing to either party hereunder shall impair that right or remedy, or be construed to be a waiver of any breach or default. (c) This Agreement may be executed in two (2) or more counterparts, each of which shall be considered an original. (d) Licensee may not assign this Agreement without the prior written consent of Owl Labs and any such attempted assignment shall be void. Owl Labs may assign this Agreement in the event of a merger, acquisition or sale of all or substantially all of Owl Lab’s assets. Subject to the foregoing, this Agreement shall be binding upon and insure to the benefit of the parties hereto, their successors and permitted assigns. (e) Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, labor disputes, shortages of supplies, fire, war, and disruption related to terrorism, epidemics, or delays of common carriers. (f) Licensee hereby acknowledges that the Product may be subject to export controls under the laws and regulations of the United States, as well as any applicable laws and regulations of the territories outside of the United States. Licensee shall comply with such laws and regulations and agrees not to export, re-export or transfer the Product without first obtaining all required governmental authorizations or licenses. Owl Labs and Licensee each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. (g) Any notice under this Agreement must be in writing and is deemed given and effective 3 business days after mailing first class, postage prepaid, or when delivered by overnight express or other delivery service, to the party at the address listed above. (h) Licensee agrees that Owl Labs may list Licensee’s name in any customer lists and it will cooperate with Owl Labs in the preparation of a press release to be issued by Owl Labs immediately following the Effective Date announcing the signing of Licensee as a customer of Owl Labs. (i) The Product and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (I) only as Commercial Items and (II) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States; (j) You shall not use the Product for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.