Software License Agreement for B5WC

SOFTWARE AND SDK LICENSE AGREEMENT (for B5WC)

You (either an individual or a legal entity) may use the “Licensed Material” defined below as a Licensee, only when you agree to this “SOFTWARE AND SDK LICENSE AGREEMENT” set forth below (hereafter referred to as “this Agreement”) regardless from wherever you obtain the Licensed Material.

This Agreement is a legal agreement between you and OMRON Corporation (hereafter referred to as “Omron”). By downloading, installing, copying or otherwise using the Licensed Material, you agree to be bound by and comply with the terms and conditions of this Agreement. If you do not agree such terms and conditions, do not download, install, copy or use any part of this Licensed Material.
Subject to the aforementioned compliance by Licensee, Omron grants to Licensee a non-exclusive and non-transferable license to use the Licensed Material as follows:

1.DEFINITION

As used herein, the following terms shall have the following meanings:

1. “Affiliate” means any company, corporation or entity that is controlled by a party and/or any company, corporation or entity that controls a party and/or any company, corporation or entity that is controlled by one of the before mentioned companies, corporations or entities. However, any such company, corporation or entity shall be deemed to be an Affiliate only as long as control exists. For these purposes, a company, corporation or entity shall be treated as being controlled by another company, corporation or entity if that other company, corporation or entity has fifty percent (50%) or more of the votes in such entity, and/or is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
2. “Intellectual Property Rights” means any patent, copyright, trade secret, trademark or other intellectual property rights (including, without limitation, applications thereof) in any idea, design, concept, method, technique, invention, discovery, improvement, technical information, software (in whatsoever form or media) and related algorithms, flow charts, logic diagrams and specifications, mask works, graphics or other works of authorship.
3. “Licensee” means a person (either an individual or a legal entity) who agree to this Agreement and obtain the Licensed Material to download, install, copy or otherwise using.
4. “Licensee Apps” means an application software developed by Licensee to be utilized for the purpose of driving Omron Product.
5. “Licensee’s Customer” means the user or potential user of Licensee Apps. Licensee shall ensure all such customers are bound by a written agreement that protects Omron intellectual property, including the Licensed Material, to at least the standards set forth herein and expressly disclaims all warranties and liability of Omron.
6. “Licensed Material” means, collectively or any part of, (i) Software, (ii)SDK and (iii) digital medium or printed document that records Software or SDK.
7. “Omron Product” means the Omron’s sensing product model “B5WC”
8. “Sample Code” means sample source code(s) provided by Omron to be utilized for the purpose of developing Licensee Apps.
9. “Software” means the materials provided by Omron listed below collectively or any part of them: (i) evaluation software, (ii) USB driver, (iii) CAD data of Omron Product including 2D/3D mechanical design CAD and electrical CAD, (iv) electronic documents related above including without limitation catalogues and manuals.
10. “SDK”, an abbreviation of “software development kit”, means the materials provided by Omron listed below collectively or any part of them: (i) Sample Code, (ii) electronic documents related above including without limitation catalogues and manuals.

2.GRANT

1. Software
   Subject to the terms and conditions in this Agreement, Omron hereby grants to Licensee the limited, revocable, non-transferable, non-exclusive and non-sublicensable license to use the Software solely on a specified single computer that Licensee owns by itself without payment unless otherwise specified by Omron.
   Licensee may copy the Software for backup purpose only; however, such backup copy must retain every copyright notice or other property right notice that is included in the original Software.
2. SDK
   Subject to the terms and conditions in this Agreement and solely for developing Licensee Apps, Omron hereby grants to Licensee the limited, revocable, non-transferable, non-exclusive and non-sublicensable license to use the SDK solely on a specified single computer that Licensee owns by itself without payment unless otherwise specified by Omron.
   Licensee may copy and modify Sample Code for the purpose of developing Licensee Apps, and distribute Licensee Apps to Licensee’s Customer.
   Except Sample Code, Licensee may copy the SDK for backup purpose only; however, such backup copy must retain every copyright notice or other property right notice that is included in the original SDK.
3. Except as expressly permitted by this Agreement, Licensee shall not:
   1. sublicense, distribute, publish, sell, assign, transfer, rent, lease or upload to on any website or server the Licensed Material unless otherwise granted in Section 2.1 or 2.2;
   2. modify, translate, adapt, reverse engineer, de-compile or disassemble the Licensed Material except Sample Code;
   3. use or reproduce the Licensed Material, in whole or in part, other than as expressly permitted by this Agreement;
4. This Agreement does not grant Licensee any rights to use any trademarks, logos or service marks belonging to Omron or any Omron’s Affiliate unless otherwise granted in Section 6.
5. Licensee shall not take any action that causes Licensee to be mistaken as a director, employee, representative or agent in relation to Licensed Material or Omron Product.
6. Licensee shall not use the Licensed Material for any unlawful, illegal or unethical activity, nor develop any software using Licensed Material which commits or facilitates the commission of a crime, or other tortious, unlawful, illegal or unethical act.
7. Licensee shall not disclose or publish any information that helps any third party do prohibited activities of Licensee in this Agreement.
8. Licensee shall not make or distribute Licensee Apps used in the following applications, which could contribute to breach the terms and conditions for Omron Product, referred to in Section 7.1:
   1. Applications with stringent safety requirements, including but not limited to nuclear power control equipment, combustion equipment, aerospace equipment, railway equipment, elevator/lift equipment, amusement park equipment, medical equipment, safety devices or any other applications that could cause danger/harm to people’s body and life.
   2. Applications that require high reliability, including but not limited to supply systems for gas, water and electricity, etc., 24 hour continuous operating systems, financial settlement systems and other applications that handle rights and property.
   3. Applications for use under severe conditions or in severe environments, including but not limited to outdoor equipment, equipment exposed to chemical contamination, equipment exposed to electromagnetic interference and equipment exposed to vibration and shocks.
   4. Automotive applications (including automotive applications relating to two wheel vehicles).
   5. Applications for crime prevention, security purpose or other criminal activity monitoring usage.
   6. Applications to harm or damage human’s life, body or properties, including but not limited to military weapons.
   7. Applications under any conditions or environments not specifically described in the specification of Omron Product.

3.WARRANTY AND DISCLAIMER

OMRON LICENSES THE LICENSED MATERIAL TO LICENSEE ON AN “AS IS” BASIS WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE SHALL USE THE LICENSED MATERIAL, SOLELY ON ITS OWN RESPONSIBILITY, AND AT ITS SOLE COST AND RISK. OMRON DOES NOT MAKE, AND HEREBY DISCLAIM, ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, TITLE AND NONINFRINGEMENT OF THIRD PARTY’S RIGHTS, THE WARRANTY OF DESIGN, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OMRON DOES NOT WARRANT THAT LICENSED MATERIAL WILL MEET LICENSEE’S REQUIREMENTS, THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ITS DEFECTS WILL BE CORRECTED, OR THAT IT WILL BE COMPATIBLE WITH ANY OR FUTURE OMRON PRODUCTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OMRON OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OMRON’S OBLIGATIONS UNDER THIS AGREEMENT. LICENSEE HEREBY WAIVE ANY AND ALL CLAIMS THAT LICENSEE MAY HAVE AGAINST OMRON ARISING OUT OF THE LICENSED MATERIAL AND/OR THIS AGREEMENT.
Omron may extend, enhance, or otherwise modify the Licensed Material at any time without notice, but Omron has no obligation to provide Licensee with any updates or changes. If updated or changes are made available by Licensee, the terms and conditions in this Agreement shall govern such updates or changes, unless the updates or changes are accompanied by a separate license in which case the terms and conditions of such license will govern.
Omron has no obligation to provide any support or engineering assistance of any sort to Licensee or any of Licensee’s Customers.

4.DAMAGE LIMITATION

THE LICENSED MATERIAL IS PROVIDED AS A CONVENIENCE AND ACCOMMODATION TO LICENSEE. IN NO EVENT SHALL OMRON, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, NEGLIGENCE AND STATUTORY, AND REGARDLESS OF THE FORM OF ACTION. IN NO EVENT SHALL OMRON, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATING TO THE LICENSED MATERIAL, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY OF THE FOREGOING PARTIES FOR ALL CLAIMS OF EVERY KIND (INCLUDING THOSE ARISING IN TORT) ARISING OUT OF THE LICENSED MATERIAL AND/OR THIS AGREEMENT SHALL NOT EXCEED FIFTY U.S. DOLLARS (US$50.00).

5.INTELLECTUAL PROPERTY OWNERSHIP RIGHTS

1. Title and ownership of all Intellectual Property Rights in the Licensed Materials will at all times remain with Omron and/or its suppliers. The rights granted to Licensee by Omron under such Intellectual Property Rights are only for the purposes set forth in Section 2. Licensee shall not remove any copyright, patent, trade secret, proprietary and/or other legal notices contained on or in the Licensed Materials, including any associated software, programming, or documentation. Licensee shall not use any information or data disclosed by Omron in connection with this Agreement to contest the validity of any Omron intellectual property rights. Any such use of Omron’s information and data shall constitute a material, non-curable breach of this Agreement.
2. Omron agrees that it obtains no right, title or interest (including intellectual property) from Licensee (or third parties that grants any rights to Licensee) under this Agreement in or to Licensee Apps. Licensee shall not exercise any right, title or interest (including intellectual property and/or license of intellectual property) in or to Omron Product or Licensee Apps to Omron (including its Affiliates, directors, officers or employees) (collectively, the “Omron Indemnitees”). If Licensee assigns such rights to any third party (including Licensee's employer), Licensee shall impose on such third party an obligation not to exercise such rights to Omron Indemnitees.

6.TRADEMARK

1. Logo: Not allowed to use.
2. Text: Follow instructions below.
   o “OMRON”, ”Omron” : Use them only in the explanation of Omron Product, like “An app for Omron’s sensing product B5WC”;

7.ACKNOWLEGMENT

1. Licensee shall abide by the terms and conditions stated in the documents attached to Omron Product including without limitation “Instruction Sheet”, in addition to this Agreement.
2. Licensee shall avoid infringing on portrait rights, privacy rights or similar rights of the people whom Omron Product driven by Licensee Apps possibly catch, and shall take measures to avoid Licensee’s customer from unwished misconduct.
3. Omron reserves the right to develop application software with the same or similar function with Licensee Apps or its idea, and may do so at its sole discretion.
4. Omron may discontinue the provision of Licensed Materials or change the specifications of Licensed Materials for the purpose of improving them or other reasons entirely at Omron’s sole discretion at any time.

8.INDEMNIFICATION

Licensee agrees to indemnify, defend and hold harmless Omron Indemnitees from actual or alleged claims, losses, liabilities, damages, expenses and costs, including reasonable attorney’s fees and expert costs, incurred by any Omron Indemnitees as a result of (a) a breach of this Agreement by Licensee, (b) Licensee’s violation of applicable law, (c) the negligence or other wrongful conduct of Licensee, (d) the Licensee Apps, or (e) any claims that a Licensee Apps violates or infringes any third party intellectual property or proprietary rights.

9.NOTICE

Except as otherwise provided in this Agreement, all notice required or permitted to be given under this Agreement shall be in writing in English and shall be given by prepaid registered mail to such other addresses as the parties may designate in writing.

10.EXPORT/IMPORT CONTROL

Licensee shall comply fully with all relevant export and import laws and regulations of the place of residence and all other relevant jurisdictions (“Export/Import Laws”) in the case of export/import or taking action deemed as export/import by Export/Import Laws.

11.TERM

1. This Agreement is effective until terminated.
2. Omron may terminate this Agreement immediately, in case that:
   1. Licensee fails to comply with any term in this Agreement;
   2. there is a threat of or actual lawsuit relating to the Licensed Materials; or
   3. an application for bankruptcy, dissolution, liquidation, compositions or company
      reorganization is filed by Licensee or against Licensee.

12.EFFECT OF EXPIRATION OR TERMINATION

1. Upon termination or expiration of this Agreement for any reason or for convenience, the license and rights granted hereunder shall automatically and immediately terminate and expire and Licensee shall immediately (i) cease using the Licensed Materials and the Licensee Apps in any manner, (ii) return to Omron or destroy under Omron’s instruction the Licensed Materials (including all copies thereof) to Omron.
2. The rights and obligations under Section 3(WARRANTY AND DISCLAIMER), 4(DAMAGE LIMITATION), 5(INTELLECTUAL PROPERTY OWNERSHIP RIGHTS), 6(TRADEMARK), 7(ACKNOWLEGMENT), 8(INDEMNIFICATION) and 13(MISCELLANEOUS) shall survive expiration or termination of this Agreement and bind the parties and their legal representatives, successors and assigns thereafter.

13.MISCELLANEOUS

1. If the performance of this Agreement or any obligation hereunder is prevented, delayed or restricted by reason of the cause beyond the reasonable control of the party so affected, including, but not limited to, war, hostility, riot, revolution, embargo, enforcement of any law, order or regulation, fire, wind, earthquake, flood, severe weather or other acts of God, the party so affected shall be excused from such performance to the extent of such prevention, delay or restriction and shall not constitute a breach of this Agreement.
2. Licensee shall not assign to a third party this Agreement, or any rights or obligations hereunder, in whole or in part, without the prior written approval of Omron. Any attempted assignment without such approval shall be wholly void and totally ineffective for all purposes. Omron may assign this Agreement, without Licensee’s consent, to any Affiliate, or in the event of a merger, acquisition, or sale of all or substantially all of its assets.
3. If, at any time, any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The invalid provision shall be replaced by a valid one which achieves to the extent possible the original purpose of the invalid provision.
4. Any failure of either party hereto to enforce at any time or for any period of time, any of the provisions of this Agreement shall not be construed as a waiver of such provision or right or remedy of the party to enforce such provision.
5. Any and all disputes, controversies or differences which may arise between the parties hereto out of or in relation to or in connection with this Agreement shall be finally and exclusively settled by the competent courts of Japan.
6. The formation, validity, construction and performance of this Agreement and all amendments and supplements hereto shall be governed and interpreted by and in accordance with the laws of Japan without reference to conflict of law rules.
7. The prevailing party in any judicial action, if any, brought to enforce or interpret this Agreement or for relief for the breach hereof shall be entitled to recover its reasonable attorney’s fees therein incurred.
8. The headings of this Agreement and respective Section hereof are used for convenience only and shall not affect in any way the construction of the provisions to which they refer.
9. This Agreement constitutes the final and entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous negotiations, representations, statements, agreement or commitments, whether oral or in writing and whether express or implied, between the parties hereto.
10. Omron may, at its discretion, change this Agreement at any time by any reason. Omron gives notice regarding the changed contents on its web site. The changed Agreement applies at the moment of posting on the Omron’s web site unless otherwise instructed. Licensee is deemed to agree all provisions of the changed Agreement if Licensee uses the Licensed Materials, develops Licensee Apps or distributes Licensee Apps after the changed Agreement is effective.

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