Software Licensing Agreement

  1. Grant of Access and Use. EdgeCortix hereby grants to Customer, and Customer accepts, a limited, personal, non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use and download the Software solely for Customer’s own internal business purposes to utilize in connection with the hardware provided by EdgeCortix and to utilize the other functionality provided by the Software, subject to compliance with the terms and conditions of this Agreement. Customer and its employees, contractors, or agents may use the Software solely for the benefit of Customer (each an “Authorized User” and collectively, the “Authorized Users”)
  2. Restrictions.
    1. Customer shall not, and shall not assist or enable any other party to: (i) decompile, translate, reverse-engineer, disassemble, or otherwise reduce to human readable form the Software and/or the data files generated by the Software in whole or in part; (ii) transmit the Software, or display the object code of the software embodied in the Software on any computer screen, or make any hard-copy memory dumps of the object code; (iii) publish or disclose the results of any benchmarking of the Software, or use such results for any other software development activities; (iv) make any copies of the Software; (v) copy, modify or prepare derivative works of the Software, in whole or in part; (vi) hypothecate, rent, lease, loan, lend, time-share, sublicense, distribute or otherwise transfer the Software to any other individual, corporation or other legal entity; (vii) remove, alter, or obscure any product identification, ownership or intellectual property rights notices on or in the Software; (viii) remove any proprietary notices from the Software; or (ix) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    2. Customer shall not export, ship, transmit or re-export any part of the Software in violation of any applicable statute, law, rule, or regulation, including, but not limited to, Export Administration Regulations issued by the U.S. Department of Commerce.
    3. If any Authorized User or any other person using the Software through Customer's account violates the above restrictions or threatens to violate them, EdgeCortix is entitled to intervene, without prior consultation with Customer, to terminate the violation, take reasonable actions to prevent any imminent danger, or terminate this Agreement.
    4. Customer is liable for any damage caused by any Authorized User or any person using the Software through Customer's account in violation of these restrictions. EdgeCortix is at all times entitled to report any actual or suspected criminal offense related to Customer’s use of the Software, and EdgeCortix shall have no liability for any damage to Customer that may result from such report.
    5. Customer acknowledges that the Software is designed to be compatible only with the software, hardware, and/or systems specified as compatible by EdgeCortix.
  3. Intellectual Property Rights.
    1. Customer acknowledges and agrees that this Agreement does not grant to Customer any title or right of ownership in or to the Software, or any related software or component thereof, or to any associated materials or intellectual property, or in or to any enhancements, modifications or improvements of any of the foregoing and that EdgeCortix shall retain all right, title, and interest in the Software, all related software, any modifications or improvements made thereto, and any upgrades, updates or other materials provided in relation to the Software.
    2. EdgeCortix shall have and retain sole ownership of any and all EdgeCortix trademarks and trade names, including all related goodwill. Customer shall not remove or alter any of EdgeCortix’s trademark, patent, or copyright notices or any trademarks or logos. Customer shall not, at any time during or after the Term of this Agreement, take or cause any action, which would be inconsistent with or tend to impair the rights of EdgeCortix or its affiliates or dispute or contest, directly or indirectly, EdgeCortix’s exclusive right and title to the Software or the validity thereof.
  4. Customer Data.
    All data input via the Software by Customer and reports generated by Customer via the Software with such data (collectively, “Customer Data”) shall remain, as between Customer and EdgeCortix, the exclusive property of Customer. If applicable, EdgeCortix will collect, store, and use Customer Data in compliance with applicable laws and pursuant to EdgeCortix’s Data Protection Agreement found here.
  5. Termination.
    1. In addition to such other rights and remedies as may be available in law or in equity, either party may terminate this Agreement: (a) if the other Party commits a material breach and the breach is not cured within thirty (30) days after receipt of written notice to the breaching party; or (b) if the other party declares bankruptcy or is adjudicated bankrupt.
    2. In the event of any expiration or termination of this Agreement, Customer shall immediately cease all use of the Software and return or purge any and all components thereof, including returning or destroying or causing to be destroyed any and all copies of any documentation or other materials comprising or regarding the Software. Customer shall provide verifiable proof of its compliance with this provision if requested by EdgeCortix.
    3. EdgeCortix shall have the right to limit, suspend or terminate Customer’s access to the Software and terminate the ability to download any Software in the event that, in EdgeCortix’s reasonable determination: (a) Customer’s use is materially adversely affecting EdgeCortix, the Software, or EdgeCortix’s ability to provide service to other customers; or (b) if Customer’s use of the Software is for any unlawful, unauthorized or fraudulent purpose.
  6. Disclaimer of Warranties.
    1. THE SOFTWARE AND (INCLUDING SUPPORT, IF ANY) ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND. EDGECORTIX AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. EDGECORTIX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER'S EXPECTATIONS OR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, EDGECORTIX DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING USE OR THE RESULTS OF THE USE OF THE SOFTWARE (INCLUDING SUPPORT, IF ANY) IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
    2. CUSTOMER ACKNOWLEDGES THAT USE OF THE SOFTWARE IN COMBINATION WITH OTHER FUNCTIONALITY, OTHER SOFTWARE AND/OR HARDWARE, OR OTHER PROTOCOLS MAY REQUIRE LICENSES FROM THIRD PARTIES AND CUSTOMER ACCEPTS SOLE RESPONSIBILITY FOR OBTAINING SUCH LICENSES.
    3. THE SOFTWARE IS NOT DESIGNED OR INTENDED TO BE FAIL SAFE, OR FOR USE IN CONNECTION WITH ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, APPLICATIONS RELATED TO THE DEPLOYMENT OF AIRBAGS, OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, “CRITICAL APPLICATIONS''). FURTHERMORE, THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN CONNECTION WITH ANY APPLICATIONS THAT AFFECT CONTROL OF A VEHICLE OR AIRCRAFT, UNLESS THERE IS A FAIL-SAFE OR REDUNDANCY FEATURE (WHICH DOES NOT INCLUDE USE OF SOFTWARE OR ANY EDGECORTIX DEVICE OR HARDWARE TO IMPLEMENT THE REDUNDANCY) AND A WARNING SIGNAL UPON FAILURE TO THE OPERATOR. CUSTOMER AGREES, PRIOR TO USING OR DISTRIBUTING ANY SYSTEMS THAT WERE DEVELOPED BY USE OF THE SOFTWARE OR THAT INCORPORATE ANY PORTION OF THE SOFTWARE ARE, TO THOROUGHLY TEST THE SAME FOR SAFETY PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ASSUMES THE SOLE RISK AND LIABILITY OF ANY CRITICAL APPLICATIONS.
  7. Limitation of Liability.
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) IN NO EVENT SHALL EDGECORTIX OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE SOFTWARE, IN WHOLE OR IN PART, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY; (2) THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR IF EDGECORTIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (3) THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN.
    2. EdgeCortix shall have no liability to the extent arising from: (a) Customer errors; (b) Customer hardware, software, or operating system failures; (c) the modification of the Software by any party other than EdgeCortix (except as directed or authorized by EdgeCortix); (d) the combination of the Software with products or services not provided by EdgeCortix; (e) the use of any portion of the Software in a manner not permitted or contemplated by this Agreement or the purpose for which it is intended; or (f) the use of an earlier version of some or all of the Software other than the current version or use of the Software without all updates installed if so directed by EdgeCortix.
  8. Indemnification.
    1. Customer shall indemnify, hold harmless, and, at EdgeCortix’s option, defend EdgeCortix from and against any losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") incurred by EdgeCortix resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") based on Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Software in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by EdgeCortix or authorized by EdgeCortix in writing; (iv) modifications to the Software not made by EdgeCortix; or (v) use of any version other than the most current version of the Software delivered to Customer.
    2. EdgeCortix shall promptly notify Customer of any such Losses due to a Third-Party Claim for which indemnification is sought; provided, however, that failure to give or delay in giving such notice shall not relieve Customer of any liability it may have to EdgeCortix, except to the extent that the defense of such Third-Party Claim is prejudiced thereby. Customer shall provide a defense to EdgeCortix, using legal counsel of Customer’s choosing and reasonably acceptable to EdgeCortix. Customer will have sole control of the defense and of all negotiations for settlement of such Third-Party Claim. At Customer’s request, EdgeCortix shall cooperate with Customer in defending or settling any such Third-Party Claim; provided, however, that Customer shall reimburse EdgeCortix for all reasonable out-of-pocket costs incurred by EdgeCortix (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation. Customer may not settle any Third-Party Claim without EdgeCortix’s prior written consent unless such settlement includes a complete and final release of all liability of EdgeCortix and does not impose any obligations or restrictions on EdgeCortix.
  9. Miscellaneous.
    1. U.S. Government End Users. The Software 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 (a) only as Commercial Items and (b) 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.
    2. Independent Contractors. The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between EdgeCortix and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither Party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement.
    3. Force Majeure. Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, pandemic, or the intervention of any governmental authority (a “Force Majeure”). In such an event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
    4. Transferability. Neither all nor any part of Customer’s rights or obligations under this Agreement are assignable or transferable by Customer, whether directly or indirectly, by merger, acquisition, change of control, operation of law or otherwise, without the prior written consent of EdgeCortix, and any attempt to do so shall be void. EdgeCortix has the right to freely assign all or part of its rights and obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
    5. Amendments to Agreement. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
    6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
    7. This Agreement will be interpreted and construed in accordance with the laws of Japan, without regard to conflict of law principles and the Tokyo District Court shall have exclusive jurisdiction over all matters arising under or related to this Agreement, preliminary or otherwise. 
    8. Headings. The section headings in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of the Agreement.

Revised: September 16, 2024