Noitom International, Inc. Software Development Kits License Agreement

Last Updated: 2/15/2018

This Noitom SDK Agreement (“Agreement”) is between the individual or entity (“you” or “Developer”) that accepts it, and Noitom International, Inc. (“Noitom”). Your acceptance of this Agreement is agreed upon if you use or access the SDKs or any part of the SDKs. Your agreement to these terms also binds your authorized users, your company or organization. If you do not agree to the terms of this Agreement, stop using the Noitom SDKs immediately. Before accepting this Agreement, please carefully read it. Capitalized terms used but not defined in the body of this Agreement have the meaning given them in the “Definitions” exhibit.

1. Development License

1.1. Development License. Conditioned upon compliance with the terms and conditions of this Agreement, Noitom International, Inc. hereby grants you a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to: (a) install and use a reasonable number of copies of the SDKs on computers owned or controlled by you for the purpose of developing and testing applications that are intended for use solely in connection with Noitom Hardware and Noitom Software (“Application”); and (b) modify and incorporate into your Application any sample code provided in the SDKs.

1.2. Restrictions. The license granted to you in Section 1.1 is subject to the following restrictions, as well as others listed in this Agreement:

1.2.1. Except as expressly permitted in Section 1.1: (a) you may not publish, distribute or copy the SDKs, and (b) you may not modify or create derivative works of the SDKs.

1.2.2. You may use the SDKs solely in connection with a Noitom Hardware and/or Noitom Software.

1.2.3. You may not use the SDKs to create, or to aid the creation, directly or indirectly, of any software or hardware which provides motion tracking functionality or which is otherwise substantially similar to the features or functionality of any Noitom Product.

1.2.4. You may not, and may not enable others to, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, or algorithms in any Noitom Hardware or Software, or any software that forms part of the SDKs, nor attempt to circumvent any related security measures (except as and only to the extent any foregoing restriction is prohibited by applicable law or permitted by applicable law notwithstanding the foregoing restriction, or to the extent as may be permitted by licensing terms governing use of any open source software components or sample code included within the SDKs).

1.2.5. You may not remove, obscure, or alter any proprietary rights or confidentiality notices within the SDKs or any software, documentation or other materials in it or supplied with it.

1.2.6. You may not create Applications or other software that prevent or degrade the interaction of Applications developed by others with any Noitom Product.

1.2.7. You may not represent functionality provided by Noitom Hardware or Software as your technology. For example, you may not describe an application, technology or feature developed or distributed by you that incorporates Noitom Hardware or Software as your motion capture technology without providing attribution to Noitom.

1.3. Updates. The terms of this Agreement will apply to any Updates that Noitom makes available to you. You agree that Updates may require you to change or update your Application, and may affect your ability to use, access or interact with the Noitom Hardware, Software, and/or the SDKs.

1.4. Trademarks. You may indicate that your Application uses Noitom Hardware or Software. However, unless provided in an agreement between you and Noitom, you may not otherwise use any other trademark of Noitom in connection with your Application or company, or in any URL, product, service, name field or logos created by you.

2. Distribution License

2.1. Distribution License. Conditioned upon compliance with the terms and conditions of this Agreement, Noitom hereby grants you a limited, non-exclusive, personal, revocable, non-transferable license under Noitom’s applicable intellectual property rights to the extent necessary to: (a) copy and distribute (or have copied and distributed) the Noitom Redistributables, solely as compiled with, incorporated into, or packaged with, your Application; and (b) to make (but not have made), use, sell, offer for sale and import your Application.

2.2. Restrictions. The license granted to you in Section 2.1 is subject to the following restrictions, as well as others listed in this Agreement:

2.2.1. You may not, directly or indirectly, publish, post or otherwise make available the Noitom Redistributables other than as compiled with, incorporated into, or packaged with, your Application.

2.2.2. You may not, and may not enable others to, distribute the Non-Redistributable Materials.

3. Open Source Materials, Other Licenses

Example code made publicly available by Noitom is provided subject to the Apache 2.0 license, unless otherwise noted in the license, notice or readme files distributed with the example or in related documentation. The SDKs may otherwise include software or other materials that are provided under a separate license agreement, and that separate license will govern the use of such software or other materials in the event of a conflict with this Agreement. Any such separate license agreement may be indicated in the license, notice, or readme files distributed with the applicable software or other materials or in related documentation.

4. No High Risk Use; Acknowledgment and Waiver

4.1. Notwithstanding anything in this Agreement, you are not licensed to, and you agree not to, use, copy, sell, offer for sale, or distribute the Noitom SDKs, Noitom Hardware, Noitom Software or Noitom Redistributables (whether compiled with, incorporated into, or packaged with your Application or otherwise), for or in connection with uses where failure or fault of the Noitom Hardware, Noitom Software, Noitom Redistributables or your Application could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). ANY SUCH USE IS STRICTLY PROHIBITED.

4.2. You acknowledge the SDKs may allow you to develop Applications that enable the control of motorized or mechanical equipment, or other systems, machines or devices. If you elect to use the SDKs in such a way, you must take steps to design and test your Applications to ensure that your Applications do not present risks of personal injury or death, property damage, or other losses. The Noitom Hardware, the Noitom Software, the Noitom Redistributables and other software in the SDKs may not always function as intended. You must design your Applications so that any failure of Noitom Hardware, Noitom Software, Noitom Redistributables and/or such other software does not cause personal injury or death, property damage, or other losses. If you choose to use the SDKs, (i) you assume all risk that use of Noitom Hardware, Noitom Software, Noitom Redistributables and/or such other software by you or by any others causes any harm or loss, including to the end users of your Applications or to third parties, (ii) you hereby waive, on behalf of yourself and your Authorized Users, all claims against Noitom and its affiliates related to such use, harm or loss (including, but not limited to, any claim that Noitom Hardware, Noitom Software, Noitom Redistributables or such other software is defective), and (iii) you agree to hold Noitom and its affiliates harmless from such claims.

5. Confidentiality and Privacy

5.1. Beta Software etc. Obligations. You acknowledge and agree that Noitom may share alpha or beta software or hardware with you that it identifies as non-public. If so, you agree not to disclose such software or hardware to others without the prior written consent of Noitom until the time, if any, it is made public by Noitom, and to use such software or hardware only for the purposes expressly permitted by this Agreement.

5.2. Noitom Use of Assets. Subject to the terms and conditions of this Agreement, you grant to Noitom and its affiliates a non-exclusive, worldwide and royalty-free limited license to use, reproduce, display, perform, publish and distribute screenshots, elements, assets, photographic, graphic or video reproductions or fragments of your Application in any medium or media, solely for purposes of promotion of your Application or of Noitom and its technology and business. This license will terminate if we terminate this Agreement, or, if you terminate it, if you inform us you have terminated it, except that in both cases the license will continue after termination with respect to any materials we created and first distributed prior to our termination or your notice of termination to us.

5.3. Your Information. Noitom may collect personal information provided by you or your Authorized Users to Noitom in connection with the SDKs, and may collect other information from you or your Authorized Users, including technical, non-personally identifiable and/or aggregated information such as usage statistics, hardware configuration, problem / fault data, IP addresses, version number of the SDK, information about which tools and/or services in the SDKs are being used and how they are being used, and any other information described in Noitom’s privacy policy, currently available at Http://noitomint.com/legal/privacy-policy. Noitom may use the information collected to facilitate the provision of Updates and other services to you, to verify compliance with, and enforce, the terms of this Agreement, to improve the SDKs and Noitom’s products, and for any other purposes set out in Noitom’s privacy policy (these uses, collectively, are “Permitted Uses”). By submitting information about you and/or your Authorized Users to Noitom through your access and use of the SDKs, you consent to Noitom’s collection and use of the information for the Permitted Uses and represent that you have obtained all consents and permits necessary under applicable law to disclose your Authorized Users’ information to Noitom for the Permitted Uses. You further agree that Noitom may provide any information collected under this Section 5.3, including your or your Authorized Users’ user name, IP address or other identifying information to law enforcement authorities or as required by applicable law or regulation.

6. Ownership and Feedback

6.1. Ownership. Except for the license rights granted by you in Section 5.2, and Noitom’s ownership of Noitom Software and Noitom Redistributables, Noitom agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of your Applications, including any intellectual property rights which subsist in those Applications. As between Noitom and you, Noitom owns all right, title and interest, including all intellectual property rights, in and to the SDKs, the Noitom Software and the Noitom Redistributables, other than any third party software or materials incorporated in the SDKs, and you agree not to contest Noitom’s ownership of any of the foregoing.

6.2. Feedback. You may (but are not required to) provide feedback, comments and suggestions (collectively, “Feedback”) to Noitom. You hereby grant to Noitom a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose.

7. Your Obligations and Warranties

In addition to your other obligations under this Agreement, you warrant and agree that:

7.1. You are at least 18 years of age and have the right and authority to enter into this Agreement on your own behalf and that of your Authorized Users, or if you are entering into this Agreement on behalf of your company or organization, you have the right and authority to legally bind your company or organization and its Authorized Users.

7.2. You will use the SDKs only in accordance with all accompanying documentation, in the manner expressly permitted by this Agreement, and your use of the SDKs, and the marketing, sales and distribution of your Application, will be in compliance with all applicable laws and regulations and all U.S. and local or foreign export and re-export restrictions applicable to the technology and documentation provided under this Agreement (including privacy and data security laws and regulations), and you will not develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act.

8. Agreement and Development Program

We reserve the right to change this Agreement or the SDKs at any time in our discretion. Noitom may require that you either accept and agree to the new terms of this Agreement, or, if you do not agree to the new terms, cease or terminate your use of the SDKs. Your continued use of the SDKs after changes to this Agreement take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop using the SDKs and terminate this Agreement. Any termination of this Agreement by you under this Section 8 (and only this Section 8) will not affect your right, subject to your continued compliance with your obligations under this Agreement, to continue to distribute versions of your Application created and first distributed before termination, and will not affect the right of your End Users to continue using such versions of your Application, both of which rights will survive termination.

9. Term and Termination

9.1. Term. This Agreement will continue to apply until terminated by either you or Noitom as set out below.

9.2. Termination by You. If you want to terminate this Agreement, you may terminate it by uninstalling and destroying all copies of the SDKs that are in the possession, custody or control of you, your Authorized Users and your organization.

9.3. Termination by Noitom. Noitom may at any time, terminate this Agreement with you for any reason or for no reason in Noitom’s sole discretion, including as a result of non-compliance by you with the restrictions in Section 1.2 or Section 2.2, or for other reasons.

9.4. Effect of Termination. Upon termination of this Agreement, all rights granted to you under this Agreement will immediately terminate and you must immediately cease all use and destroy all copies of the SDKs in your and your Authorized Users’ possession, custody or control, and, except as specifically set out in Section 8, cease your distribution of Applications. Sections 1.2, 2.2, 2.2.3, 5.1, 5.2, 6, 9.4, and 10 - 13, and the Definitions exhibit, will survive termination of this Agreement. Termination of this Agreement will not affect the right of your End Users who have downloaded your Application prior to termination to continue using it.

10. Indemnification.

You agree to indemnify, hold harmless and, at Noitom’s option, defend Noitom and its affiliates and their respective officers, directors, employees, agents, and representatives harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable attorneys’ fees) incurred by them arising out of or relating to any third party claim (a) with respect to your Application, including products liability, privacy, or intellectual property infringement claims, or (b) based upon your negligence or willful misconduct or any breach or alleged breach of your representations, warranties, and covenants under this Agreement. In no event may you enter into any settlement or like agreement with a third party that affects Noitom rights or binds Noitom in any way, without the prior written consent of Noitom.

11. Warranty Disclaimer.

THE SDKs, THE NOITOM SOFTWARE AND NOITOM REDISTRIBUTABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NOITOM, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SDKs, THE NOITOM SOFTWARE AND THE NOITOM REDISTRIBUTABLES INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND NOITOM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE. NOITOM DOES NOT WARRANT THAT THE SDKs, THE NOITOM SOFTWARE OR THE NOITOM REDISTRIBUTABLES WILL BE ERROR-FREE OR THAT THEY WILL WORK WITHOUT INTERRUPTION.

12. Limitation of Liability.

IN NO EVENT WILL NOITOM'S LIABILITY, OR THOSE OF ITS SUPPLIERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE SDKs EXCEED ONE THOUSAND DOLLARS. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, OR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

13. Miscellaneous.

13.1. Assignment. You may not assign this Agreement without the prior written consent of Noitom. Any assignment without such consent is void and of no effect. Noitom may assign this Agreement without your consent in connection with (a) a merger or consolidation of Noitom, (b) a sale or assignment of substantially all its assets, or (c) any other transaction which results in another entity or person owning substantially all of the assets of Noitom. In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

13.2. Waiver; Severability. The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

13.3. Reservation. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied, are granted by Noitom, by implication, estoppel, or otherwise. The software in the SDKs is licensed, not sold.

13.4. Export Restrictions. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use.

13.5. Governing Law and Jurisdiction. This Agreement will be exclusively governed by and construed under the laws of the State of Florida, without reference to or application of rules governing choice of laws. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Miami, Florida and you hereby consent to such jurisdiction. However, Noitom may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over you or your Authorized Users, to seek injunctive relief.

13.6. Relationship of the Parties. This Agreement does not create any agency, partnership, or joint venture relationship between Noitom and you. This Agreement is for the sole benefit of Noitom and you (and indemnified parties), and no other persons will have any right or remedy under this Agreement.

13.7. Notice. The address for notice to Noitom under this Agreement is:

Noitom International, Inc.
278 NE 60th Street
Miami, FL 33137
Attention: Legal Department

Noitom may provide you notice under this Agreement by email or other electronic communication or by posting communications to its development community on the Noitom developer portal. You consent to receive such notices in any of the foregoing manners and agree that any such notices by Noitom will satisfy any legal communication requirements.

13.8. Entire Agreement. This Agreement is the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter.

Definitions

Whenever capitalized in this Agreement:

“Authorized Users” means your employees and contractors, members of your organization or, if you are an educational institution, your faculty, staff and registered students, who (a) have a demonstrable need to know or use the SDKs in order to develop and test Applications on your behalf and (b) each have written and binding agreements with you to protect against the unauthorized use and disclosure of the SDKs consistent with the terms and conditions of this Agreement. Authorized Users do not include End Users.

“End User” means your end user customer(s) or licensee(s).

“Noitom” “we” or “us” means Noitom International, Inc., a Delaware corporation with a principal place of business at 278 NE 60th street, Miami, FL 33137.

“Noitom Hardware” refers to any Noitom hardware and accompanying software, including but not limited to Perception Neuron, Project Alice, Hi5 VR Glove, Perception Neuron Pro.

“Noitom Redistributables” means any .lib code, .dll files, .so files, sample code, or other materials we specifically designate in the SDKs as made available for incorporation into or distribution with Applications.

“Noitom Software” means any Noitom application and related applications that interact with a Noitom hardware and an operating system to make motion control functionality available to Applications, and includes any Updates thereto.

“Non-Redistributable Materials” means the Noitom Software, and any other code, files or materials that are not specifically designated in the SDKs as made available for incorporation into Applications or that are specifically designated in the SDKs as not subject to distribution.

“SDK” means, collectively, the Noitom Redistributables, tools, APIs, sample code, software, documentation, other materials and any updates to the foregoing that may be provided or made available to you by Noitom in connection with this Agreement or otherwise for use in connection with any Noitom Hardware.

“Updates” means updates, upgrades, modifications, enhancements, revisions, new releases or new versions to the SDKs that Noitom may make available to you in connection with this Agreement.

Other capitalized terms used in this Agreement have the meaning given them elsewhere in this Agreement.