THIS LICENSE AGREEMENT (“AGREEMENT”) IS A BINDING CONTRACT THAT GOVERNS THE USE OF THE EDK (AS DEFINED BELOW) AND RELATED SERVICES PROVIDED BY EVERYSIGHT LTD. (“EVERYSIGHT”). EVERYSIGHT IS WILLING TO LICENSE THE EDK TO YOU AS THE INDIVIDUAL, COMPANY, OR LEGAL ENTITY THAT WILL BE USING THE EDK (“YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND EVERYSIGHT. BY USING THE EDK AND BY ACCESSING AND DOWNLOADING THE PRODUCT SW YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MUST NOT DOWNLOAD OR USE THE EDK (EACH OF EVERYSIGHT OR YOU, A “PARTY”, AND TOGETHER, THE “PARTIES”).
If You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept the Agreement or use the EDK on behalf of Your employer or other entity.
Introduction
Everysight designs, manufactures and distributes an augmented reality smartglasses device (the “Product”) that can be used with compatible software applications.
Everysight has created the development kit, comprised of hardware development platform, which is sold or loaned by Everysight as part of the software development kit (“Product HW”) and certain software tools, programs, libraries, sample code, API key, user manuals and other documentation (“Product SW”, and collectively with Product HW, the “Everysight DK” or “EDK”), that can be used, together with third party software applications, to design and develop applications that communicate with the Product (each an “Application”). This Agreement governs use of the EDK.
If You wish to sell, license or distribute any Application created by You using the EDK You should contact at Everysight at support@everysight.com.
1. License to Use EDK
1.1. License Grant: Subject to the provisions of this Agreement, Everysight grants to You a non- exclusive, non-sublicensable, non-transferable, non-assignable, royalty-free, revocable, personal, limited and restricted license during the term of this Agreement to download, install and use the EDK (in object code format only) solely to design, develop and test one or more Applications but not to sell, distribute or make any other commercial use of any Application except as expressly set forth in this Agreement.
1.2. Restrictions/Requirements:
1.2.1.Except as expressly set forth in this Agreement or required for the development of Applications You will not: (1) use, disclose, or provide or permit access to or use of, the EDK or an Application; (2) copy (except for a reasonable number of copies of the EDK on computers and back-up devices owned or used exclusively by You), reproduce (except for a reasonable number of copies of the documentation for Your own use), translate, modify, adapt or enhance the EDK; (3) create derivative works (including any other software) from the EDK or merge, embed or combine the EDK with any other software or materials;(4) reverse engineer or disassemble the EDK (nor the Product HW neither Product SW), or decompile, convert into human-readable form, or otherwise attempt to access or derive the source code of the EDK; (5) make any changes, modifications, additions, or improvements to the EDK and/or its operating system;
And You shall not (1) Use the EDK in any manner that is not expressly permitted pursuant to this Agreement or by law (2) license, sublicense, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise give or make available or permit the use of the EDK to or for the benefit of any other person or otherwise commercially exploit any EDK in whole or in part; (3) alter, attempt to circumvent, destroy, obscure, or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, or any technical restrictions in the EDK; or (4) permit or assist any other person to use the EDK or an Application in a way that would constitute a breach of this Agreement.
You will protect the EDK against unauthorized access, distribution or use. Regardless of the number of copies of the EDK received by You or the means or media by which You received them, each copy of the EDK is subject to this Agreement. You will ensure that each copy of the EDK that You make, install or use pursuant to this Agreement is a complete copy, including all proprietary rights notices and legal notices included by Everysight in the EDK.
1.2.2. Technical Requirements: You are solely responsible to ensure that Your development of Applications is in compliance with the EDK technical requirements and the then applicable release notes.
1.2.3. Open Source Software: The EDK may include software components licensed under an open source software license (each an “Open Source”). Use, reproduction and distribution of the Open Source are governed solely by the terms of the applicable Open Source license and not this Agreement. Notwithstanding the foregoing, You shall ensure that the Applications do not incorporate any Open Source in a manner which would cause any non-Open Source software portions of the EDK to become subject to any Open Source licensing terms, including any requirements with respect to the distribution of source code.
1.2.4. Runtime Components: The EDK includes software components that are designed to be included in applications created using the EDK (each a “Runtime Component”). The Runtime Components will be expressly identified in the documentation provided to You. Subject to the provisions of this Agreement, You may use the EDK to incorporate the Runtime Components into an Application, provided that: (1) each Runtime Component is in object code (executable) format only (not in source code format); and (2) You do not modify the Runtime Component or remove any proprietary rights notices included in the Runtime Component.
1.2.5. Sample Code: The EDK may include certain sample code that is designed to be modified and included in applications created using the EDK (collectively, the “Sample Code”). The Sample Code will be expressly identified in the documentation provided to You. Subject to the provisions of this Agreement and any additional specific license terms and conditions that apply to Sample Code, You may modify and include Sample Code in an Application.
1.2.6.Third Party Components: The EDK may include embedded computer code and other materials licensed by third parties for use as part of the EDK and that are subject to the provisions of this Agreement and any applicable third party license agreements.
2. Applications
2.1. General: You are solely responsible for all aspects of development and use of your Application, including related documentation, user assistance, support and warranty. None of Everysight's review, testing, or approval of your Application limits or relieves you of any responsibilities related to your Application. You will comply, and You will ensure that each Application complies with (i) all restrictions and requirements set forth in this Agreement; (ii) all applicable laws (including all laws relating to data privacy, personal information protection, international communications and the exportation and transmission of data, software and other regulated materials) in all relevant jurisdictions; and (iii) all restrictions and requirements related to the application development and sharing platforms.
2.2. Privacy Requirements. If Your Application will collect any data from users of the Application, then You must have a privacy policy for the Application that complies with all applicable laws, and clearly and conspicuously discloses to users all relevant information related to the data collection as required by applicable law in all jurisdictions relevant to your Application, including without limitations: (i) what kind of user data You will collect; (ii) how You collect, use, store and disclose data; (iii) how long you retain the user data; (iv) how users can opt-out from such collection and retention of their data. You will also clearly disclose that any data submitted to the Application is submitted to You and not to Everysight and that Everysight has no responsibility or liability whatsoever for any such data. You are solely responsible for the security and data protection of user data collected by Your Application or residing on server(s) or systems owned or operated by You, or by a third party designated by You.
2.3. App Agreement. You will not sell, license or distribute to any person Applications created with the EDK absent a separate confirmation and agreement with Everysight.
2.4. No Malicious/Harmful Content or Use: You will ensure that an Application: (i) does not, and cannot be used to, damage, harm, detrimentally interfere with or disrupt the integrity, performance or normal operation of, or otherwise adversely affect, any Everysight Product, any other application or data on a Everysight Product or any other computer system, hardware, software, equipment or services on or in connection with which the Application or any Everysight Product may be installed, operated or used or any related data; (ii) cannot be used for any unlawful or improper purpose, including any crime or other illegal act under applicable law; and (iii) does not contain any code, design or routine (including any virus, Trojan horse, worm, backdoor, spyware, time bomb, logic bomb or drop-dead device) that may be used to interrupt, lock, disable, erase, limit the functionality or use of, or otherwise adversely affect, or facilitate unauthorized access to, the Application, any Everysight Product, any other application or data on a Everysight Product or any other computer system, hardware, software, equipment or services on or in connection with which the Application or any Everysight Product may be operated or used or any related data.
2.5. Third Party Rights: You will ensure that an Application does not violate, misappropriate or infringe the rights (including intellectual property rights) of any person. If an Application uses an authorized application programming interface (API) that is owned by a third party, then You will ensure that the Application complies with the legal terms and conditions imposed by the third party that apply to the API. If an Application is designed to access, use or otherwise interact, whether through an API or otherwise, with any data, content or services provided by a third party, You will ensure that the Application complies with the legal terms and conditions that apply to the third party data, content and services.
2.6. Technical Support: Everysight is not obligated to provide any support services, but may do so in its discretion as shall be separately agreed between Everysight and You.
2.7. You are and will be solely responsible and liable for Applications, the use of Applications, and all data, content, services and resources that You or an Application creates, transmits or displays, and for all resulting consequences (including all damage or loss caused to end users of Applications, Everysight or any other person); and Everysight will not be responsible or liable to You or any other person (including any end users of Applications) for any of the foregoing, all as shall be further described under the App Agreement.
THE EDK IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR SUITABLE FOR THE CREATION OF APPLICATIONS FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY THE APPLICATION) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”) IN ADDITION, IN ANY EVENT YOU ARE NOT ALLOWED TO USE THE EDK FOR THE DEVELOPMENT OF ANY MILITARY, AVIATION OR MEDICAL APPLICATIONS (“PROHIBITED USE”). HIGH RISK USE AND PROHIBITED USE OF APPLICATIONS IS STRICTLY PROHIBITED, AND YOU WILL NOT USE THE EDK TO CREATE AN APPLICATION FOR A HIGH RISK USE OR FOR A PROHIBITED USE.
2.8. You agree to indemnify, release, hold harmless and, upon request, defend the Everysight Group from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including without limitations reasonable attorneys' fees and other litigation expenses, whether prior to, at trial or any other proceeding and in any appeal) incurred by Everysight, arising out of or relating to: (a) any breach or alleged breach by You of any representation, warranty, or obligation contained in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You, or any of Your affiliates, employees, agents, contractors, suppliers or customers; (c) any contract or agreement between You and a third party; (d) use by any party of Your Application, including any claims by any end user; (e) any claims related to the nature or characteristics of Your Application, or any of Your other products or services; (f) any infringement or alleged infringement of a patent, copyright, trademark or other intellectual property or proprietary right relating to this Agreement; (g) any alleged or actual violation by You of any applicable Laws; or (h) any claims or governmental regulatory actions related to Your collection, use or sharing of user data collected through Your Application in violation of this Agreement or the privacy or other rights of any user or other third party.
3. Ownership/Proprietary Rights
3.1. EDK: You acknowledge that Everysight and its licensors own and retain all rights, title and interests (including intellectual property rights) throughout the world in, to and associated with the EDK (including any Runtime Components or Sample Code that may be incorporated into an Application). The EDK is licensed, not sold, to You, and You will not acquire any right, title or interest in, to or associated with the EDK pursuant to this Agreement or otherwise. Under no circumstances will Everysight be obligated to provide, nor will You be entitled to receive, obtain or access, any source (human readable) code for the EDK. Everysight reserves all rights not expressly granted under this Agreement.
3.2. Applications: Nothing in this Agreement gives Everysight any right, title or interest (including intellectual property rights) in, to or associated with any Application, except for Runtime Components and Sample Code incorporated into an Application (which Runtime Components and Sample Code are and will remain the sole property of Everysight and its licensors).
3.3. Confidentiality: You acknowledge and agree that all non-public information regarding the EDK and the technologies contained in the EDK, including the Product HW, structure, organization and code of the software components of the EDK and all documentation (collectively, the “Confidential Information”) constitutes the trade secrets and confidential, proprietary information of Everysight and its licensors. You will use the Confidential Information only in connection with Your use of the EDK in accordance with this Agreement. Both during and after the term of this Agreement, You will: (i) maintain the strict confidentiality of the Confidential Information and take reasonable precautions to prevent any unauthorized use, disclosure, or dissemination of Confidential Information, including preventing access to by third parties, including without limitations, any person or entity which can reasonably be expected to be a competitor of Everysight by using the same degree of care as You afford to Your own confidential information of a similar nature; (ii) not disclose or make the Confidential Information available to any other person in any manner or form without Everysight’s express prior written consent, except for bona fide disclosures required by applicable law; and (iii) ensure that all persons to whom You disclose the Confidential Information (including without limitations Your employees, officers, temporarily contracted personnel or professional advisors) comply with the restrictions and requirements set forth in this section 3. Upon termination of this Agreement, You will either deliver to Everysight or permanently delete and destroy all paper and electronic documents and other records containing Confidential Information in Your possession or control.
3.4. Other Everysight Applications: You acknowledge that Everysight develops and distributes its own applications and third party applications for use with Everysight Products and will continue to do so. Nothing in this Agreement or done pursuant to this Agreement will prevent, restrict or limit Everysight’s right and ability to develop and distribute its own applications or third party applications for use on Everysight Products, and those applications may be similar to and compete with one or more Applications.
3.5. Feedback: If You or Your personnel give to Everysight feedback (including ideas or suggestions for corrections, enhancements or improvements) about the EDK, Everysight Products, or Everysight’s software applications or services, then You and Your personnel automatically grant and agree to grant to Everysight and its successors, assigns and licensees a perpetual, worldwide, royalty free, transferable and sublicenseable license to use the feedback for any and all purposes as they consider appropriate in their discretion and without providing any compensation or attribution to You or any other person.
3.6. Trademarks: You will not use any of Everysight's trademarks or logos (including using any of it in the Application's namespace) without the express prior written consent of Everysight.
4. Your Obligations
4.1. Applicable Laws: You will comply with, and ensure that Your use of the EDK complies with, all applicable local, state, provincial, national, and foreign laws, including all laws relating to data privacy, personal information protection, international communications and the exportation and transmission of data, software and other regulated materials, business practices and advertising.
4.2. Authorized Users: You are fully responsible and liable for all acts and omissions of all persons (including Your employees, consultants and contract workers) who are authorized on Your behalf to access and use the EDK for development of an Application, and You will ensure the compliance of each of those persons with the restrictions, requirements and Your obligations set forth in this Agreement.
5. Disclaimers and Liability Limitations/Exclusions
5.1. GENERAL DISCLAIMER: YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR DOWNLOADING, INSTALLATION AND USE OF THE EDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE EDK IS AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. THE EDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM EVERYSIGHT. THE EDK USE AND APPLICATION ARE AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ALL RESULTING DAMAGE AND LOSS TO YOU OR ANY OTHER PERSON.
EVERYSIGHT MAKES NO WARRANTY AND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE EDK, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF EVERYSIGHT HAS BEEN MADE AWARE OF SUCH PURPOSE), TITLE, NON-INTERFERENCE, NON-INFRINGEMENT, AND ACCURACY. WITHOUT LIMITING THE FOREGOING, EVERYSIGHT DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY WARRANTIES THAT THE OPERATION OF THE EDK OR OF APPLICATIONS BASED ON OR UTILIZING THE EDK WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE EDK WILL BE CORRECTED, OR THAT THE EDK WILL BE COMPATIBLE WITH FUTURE EVERYSIGHT DEVICES, PRODUCTS OR SOFTWARE.
YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY SAFETY ISSUES ARISING FROM YOUR USE OR TESTING THE EDK, ESPECIALLY WHILE WEARING THE PRODUCT HW OR ARISING FROM YOUR APPLICATION AND ITS USE WITH THE PRODUCT HW. AN EXTRA CARE MUST BE TAKEN WHEN USING THE EDK WHILE DOING AN OUTDOOR ACTIVITY IN ORDER TO AVOID ACCIDENT OR INJURY. YOU UNDERSTAND THE RISKS INHERENT IN THE TESTING OR USE OF THE EDK AND AY SUCH USE IS AT YOUR OWN RISK AND RESPONSIBILITY.
5.2. BETA VERSION DISCLAIMER: THE EDK IS A PRE- RELEASED AND EARLY ACCESS VERSION (A “BETA VERSION”), STILL UNDER DEVELOPMENT AND TESTING AND MAY NOT WORK THE WAY A FINAL VERSION OF THE EDK IS INTENDED TO WORK. EVERYSIGHT RESERVES THE RIGHT TO NOT RELEASE A COMMERCIAL VERSION OF, OR TO CHANGE, ANY BETA VERSION AT ANY TIME WITHOUT NOTICE
5.3. THIRD PARTY MATERIALS: EVERYSIGHT IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY APPLICATIONS, DATA, CONTENT, SERVICES OR RESOURCES THAT YOU ACCESS OR USE IN CONNECTION WITH THE EDK OR ANY APPLICATION OR FOR ANY RESULTING DAMAGE OR LOSS.
5.4. EXCLUSION/LIMITATION: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL EVERYSIGHT (AND ANY OF ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, DISTRIBUTORS, AND REPRESENTATIVES, JOINTLY AND SEVERALLY “EVERYSIGHT GROUP”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) ARISING FROM, CONNECTED WITH, OR RELATING TO THE EDK, APPLICATIONS OR THIS AGREEMENT (INCLUDING THE TERMINATION OF THIS AGREEMENT); AND (ii) IF NOTWITHSTANDING THE FOREGOING EVERYSIGHT GROUP IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL EVERYSIGHT GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO THE EDK, APPLICATIONS OR THIS AGREEMENT INCLUDING TERMINATION HEREOF) EXCEED THE AMOUNT OF US$100.
5.5. SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND THEREFORE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THIS SECTION 5 MIGHT NOT APPLY TO YOU.
6. Term and Termination:
6.1. This Agreement will continue in full force and effect until terminated by You or by Everysight as follows: (A) immediately by Everysight if: (i) You breach this Agreement or any other agreement with Everysight; (ii) Everysight is required to do so by applicable law; (iii) the EDK or any of its components is a Beta Version and Everysight replaces it with a non-beta version; (B) at any time and for any reason, by either party by providing seven (7) days prior written notice to the other party. Upon termination of this Agreement, Your license to use the EDK will terminate and You will immediately: (i) cease using, and promptly permanently delete and destroy, all copies of the EDK in Your possession or control; and (ii) cease using all Applications.
6.2. Notwithstanding any other provision of this Agreement, sections 2, 3, 4, 5 and 6, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Agreement and will remain in full force and effect and be binding upon You and Everysight as applicable.
7. General
7.1. Governing Law and Disputes: This Agreement, the relationship between You and Everysight, and all related matters shall be exclusively governed by, construed and enforced in accordance with the laws of Israel (excluding its choice of law provisions) and You hereby consent and submit to the jurisdiction of the competent courts of Israel (the place where Everysight is incorporated).
7.2. Enforcement: You acknowledge and agree that the restrictions and requirements regarding the EDK, Confidential Information, and Applications set forth in this Agreement are of fundamental importance to Everysight, and that money damages would not be a sufficient remedy for any breach of such requirements and Everysight, in addition to any and all remedies available to Everysight under this Agreement or at law, will be entitled as a matter of right to judicial relief by way of a restraining order, interim, interlocutory or permanent injunction, or order for specific performance to remedy any breach or threatened breach of such requirements.
7.3. Export/Import/Use Restrictions: The EDK may include items or technologies that are subject to domestic and international export, import or use restrictions or controls imposed by applicable law and regulations of the U.S. Government and any other applicable governmental authority (including without limitation, the Export Administration Regulations and the International Traffic in Arms Regulations) (“Export Laws”) and You shall be responsible for compliance with all Export Laws, and you shall not, without limitation, export or re-export the EDK (a) into any U.S. embargoed countries or (b) to anyone on the U.S. treasury department’s list of specially designated nationals or the U.S. department of commerce denied person’s list or entity list. by using the EDK, You represent and warrant that You are not located in any such country or on any such list. You also agree that you will not use the EDK for any purposes prohibited by any Export Law, including, without limitation, the development, design, manufacture, or production of nuclear missiles or chemical or biological weapons.
7.4. Assignment: You may not assign or otherwise transfer this Agreement or any of Your rights or obligations under this Agreement without Everysight’s prior written consent.
7.5. Competitive use. Nothing in this Agreement will impair Everyisght’s right to develop, acquire, license, market, promote, or distribute products or technologies that perform the same or similar functions as, or otherwise compete with, Your Applications or any other products or technologies that You may develop, produce, market, or distribute.
7.6. Miscellaneous. (i) No failure or delay by Everysight in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder; (ii) in the event that any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable; (iii) This Agreement sets forth the entire agreement between You and Everysight regarding the subject matter of this Agreement, and supersedes all previous communications, discussions, agreements, or understandings, whether oral or written, with respect to the subject matter of this Agreement. (iv) This Agreement may not be modified, except by a written agreement that expressly states that it is an amendment to this Agreement and is signed by both You and Everysight. (v) in the event of a controversy between the terms of this Agreement and any other terms and conditions applicable to Everysight's website or services, including without limitation the Terms of Service, the provisions of the Agreement shall prevail.