Anoto End User License Agreement

Transcription

1 Anoto End User License Agreement This End-User License Agreement (the "EULA") is a legal agreement between you (either an individual or a single entity, hereinafter referred to as You ) and Anoto AB, Emdalavägen 18, SE Lund, Sweden ( Anoto ) for Your use of Paper Products, applications and services made available to You by a third party under license from Anoto (the Supplier ). Use of some third party material included in applications or services built using Anoto development tools may be subject to additional terms and conditions typically found in one or more Read Me files, release notes and/or leaflets that come with the relevant products. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA AND ANY ADDITIONAL TERMS AS DESCRIBED ABOVE BY INSTALLING, COPYING, OR OTHERWISE USING SAID PAPER PRODUCTS, APPLICATIONS AND/OR SERVICES. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE ANOTO FUNCTIONALITY. Terms written with capital first letter(s) shall have the meaning assigned to them in this EULA. 1 Definitions 1.1 "Anoto Pattern" means the Anoto proprietary dot pattern which is coded to hold coordinates and/or other tangible information; 1.2 "Licensed Pattern" means the specific Anoto Pattern licensed to You through the Supplier; 1.3 "Paper Products" mean paper or other media on which Anoto Pattern is reproduced; 1.4 "Digital Pen" means a pen or other device, or combination of devices, which can detect and decode Anoto Pattern as reproduced on Paper Products; and 1.5 "Anoto Functionality" means (a) the conversion into digital data of information written or drawn on Paper Products by using Digital Pens; (b) the transfer of such digital data to one or more applications; and (c) the compilation, interpretation, and/or processing of such digital data. 2 Rights Granted 2.1 Subject to Your compliance with the terms and conditions of this EULA, and subject to the Supplier s payment of certain license fees to Anoto, Anoto hereby grants You the limited right, in order to enable Anoto Functionality, to: (i) Use Paper Products carrying Licensed Pattern, applications and services provided to You by the Supplier under license from Anoto. This right is limited to the number of Digital Pens and to the time interval(s) specified by certificate(s) provided to You by the Supplier; and (ii) Print or have printed Licensed Pattern on Paper Products based on digital representations of said Paper Products, if and as provided to You by the Supplier, and, specifically, only on the additional terms and conditions specified by the Supplier. 3 Ownership and restrictions Page 1 of 5

2 3.1 Anoto retains all ownership and intellectual property rights to Anoto Functionality, Licensed Pattern and those parts of the applications and services related hereto that originate from Anoto. 3.2 You may not: (i) Assign, sublicense, distribute or otherwise transfer the rights under this EULA to third parties; (ii) Make Licensed Pattern or documentation provided by Anoto or the Supplier available to any third party, unless expressly permitted in writing by Anoto or the Supplier; (iii) Modify, copy, disassemble, reverse engineer or decompile Licensed Pattern or any software or hardware related to Licensed Pattern or Digital Pen, unless expressly permitted by applicable law without the possibility of contractual waiver; or (iv) Remove any proprietary, copyright, trade secret or warning legend from Licensed Pattern, Software, hardware or documentation provided by Anoto or the Supplier. 4 Warranty disclaimer 4.1 ANOTO DOES NOT WARRANT THAT THE LICENSED PATTERN, SOFTWARE, HARDWARE, DOCUMENTATION, APPLICATIONS OR SERVICES DEVELOPED FOR ANOTO FUNCTIONALITY WILL PERFORM ERROR-FREE OR UNINTERRUPTED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY IS EXCLUSIVE AND THERE ARE NO OTHER EXPRESSED OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. 5 Term and termination 5.1 This EULA shall become effective at the date of Your first use of any technology based on Anoto Functionality. You may terminate this EULA for convenience at any time by issuing a written notice hereof to Anoto. 5.2 Anoto may terminate this EULA with immediate effect: (i) If You have committed a breach of this EULA, including but not limited to Your breach of the provisions with regard to grant of rights, and not rectified such breach within thirty (30) days after receiving written notice of termination specifying the breach; (ii) Upon attempt by the other party to assign and transfer this EULA, or any of its rights or obligations under this EULA other than as expressly permitted herein; or (iii) If the other party shall pass a resolution, or any court shall make an order, that the other party shall merge, undergo a compulsory purchase or any other corresponding or similar procedure or be wound up or if a trustee in bankruptcy, liquidator, receiver, or manager on behalf of a creditor shall be appointed, or if circumstances arise which would entitle the court or a creditor to issue a winding-up order. 5.3 This EULA will automatically terminate if and when the license between You and the Supplier to use Paper Products and/or applications and/or services related to Anoto Functionality expires or is terminated, for whatever cause. This EULA is also automatically terminated if the Supplier is exposed to any of the events described on Section Upon termination of this EULA, You shall cease any use of Anoto Functionality. Anoto shall not be liable for refunding any fees You may have paid for Your rights under this EULA. 5.5 Provisions contained in this EULA that are expressed or by their sense and context are intended to survive the termination of the EULA, including but not limited to intellectual property rights, indemnification, liabilities and jurisdiction, shall survive such termination. Page 2 of 5

3 6 Records and Audits 6.1 The rights granted to You under this EULA are given under the assumption that the Supplier pays certain license fees to Anoto for Your use of applications and/or services based on Anoto Functionality ( Runtime Licenses ). In relation to this, the Supplier is contractually bound by Anoto to give You certificate(s) stating the number of Runtime Licenses which you at each given time have the right to use. Such rights may be for the lifetime of a Digital Pen and/or for a specific time period and user account for which a license fee is paid. You agree to keep these certificates and records of Your actual number of Digital Pens and/or user accounts in use, and also Your use of Licensed Pattern and Anoto Functionality in general, regardless of how the Licensed Pattern and/or Anoto Functionality is supplied to You. 6.2 Upon 45 days written notice, Anoto shall have the right to audit or have audited Your records and Your actual use of Licensed Pattern and Anoto Functionality. You agree to cooperate during the audit and provide reasonable assistance and access to information, at Your own expense. If You are not able to show to Anoto valid certificates as described in Section 6.1 corresponding to the number of Digital Pens and/or user accounts found to be in use within Your organisation, then this shall be considered as an infringement of Anoto s intellectual property rights, and Anoto is then entitled to take action against You to the maximum permissible extent under this EULA and any applicable law. 6.3 You are requested to immediately contact Anoto in the event that You receive Runtime Licenses from the Supplier which are not accompanied by certificates as described in Section 6.1. You will not be held liable for infringement under Section 6.2 if this is done within a reasonable time frame from Your reception of said Digital Pens. 6.4 You agree and accept that the Supplier provides information to Anoto about Your identity and the number of Runtime Licenses You at each given time are licensed to use. 7 Protection and Indemnification 7.1 If a third party claims that Licensed Pattern as such infringes that party s patent or copyright, Anoto will pay costs, damages and attorney s fees that a court finally awards, to a maximum amount of ten thousand Euro (EUR 10,000), provided that You: (i) Promptly notify Anoto in writing of the claim; and (ii) Allow Anoto to control and cooperate with Anoto in the defence and any related settlement negotiations. 7.2 If such a claim is made or appears likely to be made, You agree to permit Anoto to enable You to continue to use Licensed Pattern, or to modify it, or replace it with one at least functionally equivalent. If Anoto determines that none of these alternatives is reasonably available, You agree to return Licensed Pattern to Anoto at Anoto s written request. Anoto will then give You a credit equal to the fees paid to Anoto for Licensed Pattern. 7.3 Anoto has no obligation regarding any claim based on any of the following: (i) Anything provided by the Supplier which is incorporated into Licensed Pattern; (ii) Your or the Supplier s modification of Licensed Pattern; or Page 3 of 5

4 (iii) The combination, operation or use of Licensed Pattern with any other product, service, data or apparatus. 7.4 The above sets out Anoto s entire obligation regarding any claim of infringement, and shall be Your sole and exclusive remedy for any established infringement of any third party right. Specifically, Anoto hereby disclaims all warranties, whether expressed or implied, and Anoto shall have no liability whatsoever for any damages arising out of this EULA with respect to printing of Paper Products or the Paper Products as such, including but not limited to: (i) Quality of the printed Paper Products; (ii) Ability of Digital Pens to read and decode the printed Anoto pattern; (iii) Any information regarding printers suitable for printing the Anoto pattern; and (iv) Infringement of third party intellectual property rights. You agree to acquire necessary licenses to intellectual property rights (if any) from third parties to allow You to print Paper Products according to this EULA. 7.5 Except as provided for above, the Anoto Functionality is provided "as is by Anoto and its licensors. ANOTO AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY YOU AS A RESULT OF YOUR USE OF THE ANOTO FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO YOUR USE OF PAPER PRODUCTS, DIGITAL PENS AND RELATED APPLICATIONS AND SERVICES. IN NO EVENT WILL ANOTO OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE ANOTO FUNCTIONALITY, EVEN IF ANOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.6 You agree to defend, indemnify and hold Anoto harmless against all claims, suits, costs, expenses and damages arising from any breach of and any negligence under this EULA by You. If such action is brought against Anoto by a third party, then, however, the above is on condition that Anoto gives reasonable notice to You of such action, tenders the defence of such action to You, assists You at Your expense in defending such action, and does not compromise or settle such action without Your prior written consent. 8 Miscellaneous Page 4 of 5

5 8.1 General Provisions: This EULA embodies the entire understanding between the parties respecting the subject matter of this EULA. This EULA supersedes any previously Executed end user license agreement between You and Anoto or any other agreements or understandings with respect to subject matter. This EULA shall not be modified except by a writing duly executed on behalf of the party against whom such modification is sought to be enforced. The failure of any party to require performance by another party of any provision of this EULA shall in no way affect the full right to require such performance at any time thereafter. Should any provisions of this EULA be found unenforceable, the remainder shall still be in effect. The language of this EULA shall not be construed for or against either party. The headings are not part of this EULA. 8.2 Force Majeure: Neither party shall be in default if a failure to perform any obligation hereunder is caused solely by supervening conditions beyond that party's reasonable control, including acts of God, civil commotion, strikes, acts of terrorism, labour disputes and governmental or public authorities demands or requirements. 8.3 Assignment: Neither party may assign this EULA without the other party's prior written consent. Any assignment in violation of this EULA shall be void. This EULA shall benefit and be binding upon the parties to this EULA and their respective successors and permitted assigns. Notwithstanding the foregoing, Anoto may without such consent (i) assign or extend all or part of its rights, title and interest in this EULA to any successor to all or a portion of the business of Anoto, provided however that such successor agrees to be bound by the terms and conditions contained herein, and (ii) transfer or assign this EULA to companies being Controlled by Anoto or a company Controlling Anoto. Control means ownership or control, direct or indirect, of more than 50 % of the outstanding voting shares. 8.4 Jurisdiction and Venue: The provisions contained in this EULA will be governed by and construed in accordance with the substantive Swedish laws. Any and all disputes, differences or questions between the parties with respect to any matter arising out of or relating to this EULA shall be finally settled by arbitration under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The proceedings shall be held in Stockholm, Sweden. However, notwithstanding the foregoing, if You are a US company and exercise the rights and obligations of this EULA in the USA, then provisions contained in this EULA will be governed by and construed in accordance with the laws of the State of New York, USA. Any and all disputes, differences or questions between the parties with respect to any matter arising out of or relating to this EULA shall be finally settled by arbitration under the rules of the American Arbitration Association. The proceedings shall be held in New York, NY, USA. In either case, the English language shall be used in the proceedings, any arbitration award so entered shall be final and binding upon the parties, and such award may be enforced by any court or authority having competent jurisdiction. 8.5 Enforcement: You agree that Anoto s licensors contributing to Anoto Functionality have the right to enforce and benefit from the provisions of this EULA to the same extent as Anoto has. [End of EULA] Page 5 of 5