Evaluation Software License Agreement
TO BEGIN USING THE PERASO SOFTWARE YOU MUST ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING “ACCEPT” BELOW. BY SELECTING “ACCEPT” YOU ARE INDICATING YOUR ACCEPTANCE OF, AND YOU AGREE TO BE BOUND BY, THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT CLICK “ACCEPT”. YOUR USE OF THE PERASO SOFTWARE MUST BE IN ACCORDANCE WITH THIS AGREEMENT. IF YOU VIOLATE THIS AGREEMENT, PERASO MAY TERMINATE OR SUSPEND YOUR ABILITY TO ACCESS OR USE THE PERASO SOFTWARE AT ANY TIME. UNAUTHORIZED USE OF THE PERASO SOFTWARE IS STRICTLY PROHIBITED.
This Peraso Software License Agreement (the “Agreement”) is entered into on the date accepted as indicated above (the “Effective Date") and is by and between: Peraso Technologies Inc., a company incorporated under the laws of the Province of Ontario, having a place of business at 144 Front Street West, Suite 685, Toronto, Ontario, M5J 2L7, Canada ("Peraso") and the entity that has accepted this Agreement (or the entity that the person who has accepted this Agreement represents) ("Customer"). Customer and Peraso may be referred to individually as a “Party” and collectively as the “Parties.”
Intellectual Property
1.1 Peraso Software. “Peraso Software” means the software drivers, firmware, application code and any other software provided by Peraso to Customer, along with their accompanying user guide, and/or other supporting written documentation materials for the Peraso Software (“Documentation”), including any and all modifications, alterations, enhancements, adaptations software fixes, corrections and/or workarounds made by Peraso and provided to Customer, but in all cases not including any Open Source Software (as defined below). Peraso shall retain all right, title and interest, including all intellectual property rights, in and to the Peraso Software.
1.2 License to Peraso Software. Subject to the terms and conditions of this Agreement, Peraso hereby grants Customer a non-exclusive, non-transferable license to use, copy, modify (limited to those portions provided by Peraso to Customer in source code or other reconfigurable formats) and internally distribute to its affiliates the Peraso Software, solely for the purposes of evaluating modules, integrated circuits and other hardware products purchased from Peraso (“Peraso Products”), and evaluating Customer’s planned development of a hardware device (“Customer Product”) that, when deployed, will contain Peraso Products purchased from Peraso (or its authorized third parties) by Customer.
1.3 Open Source Terms. “Open Source Software” means: (i) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or any similar licensing and/or distribution models; and (ii) any software that requires as a condition of use, modification, and/or distribution of such software that such software or other software incorporated into, derived from, or distributed with such software be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative work(s); or (c) redistributable at no or minimal charge. Open Source Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models similar to any of the following: (i) the GNU General Public License (GPL), the Affero General Public License (AFL), the GNU Affero General Public License or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g. PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Source License (SISL); and (vii) the Apache Server License. The rights granted in this Agreement in respect to the Peraso Software shall not include or convey any rights or licenses for any Open Source Software that may be used with or in the Peraso Software or that may be delivered with or in the Peraso Software. Customer shall be solely responsible for obtaining directly from the applicable open-source developer or project any and all rights and licenses for any Open Source Software that may be used with or in the Peraso Software or that may be delivered with or in the Peraso Software. With respect to the Open Source Software with or in the Peraso Software or that may be delivered with or in the Peraso Software, nothing in this Agreement limits any rights under, or grants rights that supersede, the terms of any applicable license for such Open Source Software.
1.4 Source Code Protection. For Peraso Software that is provided to Customer in source code form (“Peraso Source Code”), such source code shall be maintained in strict confidence. Customer shall (i) only store Peraso Source Code in a secure source code repository at its facilities that may only be accessed by authorized individuals using individualized passwords that are created and maintained in accordance with a reasonable security policy; and (ii) and Customer shall only grant access to the Peraso Source Code to those employees or contractors performing work functions similar to employees of Customer who have a need to know such Peraso Source Code to perform their work functions. Customer shall not combine the Peraso Source Code (or any parts thereof) with any Open Source Software in any manner that requires or has as a condition of the use of such Open Source Software that the Peraso Source Code be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative work(s); (iii) redistributable at no or minimal charge; or (iv) that otherwise imposes any limitation, restriction or condition on the right or ability of Peraso to use or distribute the Peraso Software.
1.5 Restrictions. Under this Agreement, Customer will not use the Peraso Software to develop any Customer Product except as required to evaluate Customer’s planned development containing Peraso Products. Customer shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Peraso Software not provided by Peraso in source code form or other reconfigurable formats, nor permit any third party to do any of the foregoing, except in each case to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. For greater certainty, all licenses granted with respect to any source code or other reconfigurable formats of the Peraso Software are internal licenses only. Customer shall not distribute, sublicense, transfer or otherwise make available to any third party any Peraso Software.
1.6 Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth in this Agreement. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either Party under this Agreement. Each Party remains the owner of its pre-existing intellectual property that it holds before the Effective Date or of its intellectual property that it develops independently of this Agreement.
Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PERASO DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
Limitation of Liability
IN NO EVENT SHALL PERASO HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT PERASO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PERASO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED US$2,000.
Term, Termination and Effects
Term. This Agreement shall have a term that commences on the Effective Date and continues thereafter for ninety days, unless otherwise terminated as provided in this Agreement or unless mutually extended by the Parties (the “Term”).
Termination. Each Party has the right to terminate this Agreement if the other Party breaches or is in default of any material obligation in this Agreement, which default is incapable of remedy or which default, being capable of remedy, has not been remedied within thirty (30) days after receipt of written notice from the non-defaulting Party of such default or within such additional remedy period as the non-defaulting Party may authorize.
Effect of Termination. Upon any expiration or termination of this Agreement, all licenses granted from Peraso to Customer will terminate as of the effective date of termination; and Customer shall either return all copies of the Peraso Software to Peraso or shall provide Peraso with a certificate signed by an authorized representative indicating that all copies of the Peraso Software have been destroyed. The following provisions shall survive any termination of this Agreement: Sections 1.1, 1.3, 1.4, 1.5, 1.6, 2, 3, and 4.3.
General
Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario. Each Party irrevocably submits itself to the jurisdiction of the courts of the Province of Ontario to finally adjudicate or determine any suit, action or proceeding arising out of or in connection with this Agreement, provided, however, that each Party may bring action(s) for equitable relief in any jurisdiction that has a reasonable connection to the subject matter of this Agreement.
Arbitration. All disputes, controversies and claims arising out of or in connection with this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules by one or more arbitrators appointed in accordance with such rules. The place of arbitration will be Toronto, Ontario, Canada and the language used in the arbitration proceedings will be English. Judgment on the award rendered by the arbitral tribunal may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets. The Parties shall keep confidential the existence and content of the arbitration proceedings and any rulings or award except (a) to the extent that disclosure may be required of a Party to fulfill a legal duty or protect or pursue a legal right or (b) if otherwise agreed in writing by both Parties. Notwithstanding anything to the contrary in this Agreement, either Party may disclose matters relating to the arbitration of or the arbitration proceedings where necessary for the preparation or presentation of a claim or defense in such arbitration. The arbitral tribunal shall award its costs and expenses, including attorneys’ fees, to the prevailing Party, if any, as determined by the arbitral tribunal in its discretion. The arbitral tribunal shall render the award within six months of the appointment of the arbitrator(s), unless the arbitral tribunal determines that the interests of justice or the complexity of the cases requires that such limit be extended.
Entire Agreement. This Agreement, along with its schedules, sets forth the entire Agreement between the Parties with respect to the subject matter hereof and cancels and supersedes any and all prior proposals, agreements and representations between the Parties, whether written or oral, and any purchase orders that may be submitted by Customer to Peraso. The foregoing shall not impact any non-disclosure agreement between the parties. This Agreement may be changed only by mutual agreement of the Parties in writing. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
Interpretation. All terms and provisions of this Agreement shall, if possible, be construed in a manner which makes them valid, but in the event any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected if the illegal or unenforceable provision does not materially affect the intent of this Agreement. If the illegal or unenforceable provision materially affects the intent of the Parties to this Agreement, this Agreement shall be terminated. The headings of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to constitute a part hereof. The Parties agree that this Agreement will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party and that ambiguities shall not be interpreted against the Party that drafted the relevant language.
Equitable Remedies. Each Party acknowledges that a violation of any provision of this Agreement may result in immediate and irreparable harm to the other Party which may not be compensated adequately by recovery of damages alone and agrees that, in the event of any such violation or threatened violation, the other Party shall, in addition to any other rights or remedies available at law, in equity or otherwise, be entitled to seek temporary and/or permanent injunctive relief, specific performance and other equitable remedies.
Assignment. Customer may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Peraso, not to be unreasonably withheld. Peraso may assign this Agreement in its entirety, without the consent of Customer, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Peraso’s business, stock or assets. Any attempt to assign rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of Peraso, its respective successors and permitted assigns.
Export Restrictions. The Peraso Software and related information are subject to export and import restrictions. Customer represents and warrants that neither Customer nor any of Customer’s potential or actual customers, partners or end users to which Customer intends to distribute and sublicense the Peraso Software is located in, under the control of, or a national or resident of, any country to which the export of the Peraso Software or related information would be prohibited or restricted (including the requirement to obtain an appropriate export license) by the laws and/or regulations of Canada or the United States. Customer shall comply with the export laws and regulations of Canada and the United States that are applicable to the Peraso Software and related information and Customer shall also comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Peraso Software or related information. The Peraso Software and related information shall not be used for any purposes prohibited by applicable export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Peraso Software or related information. Customer represents and warrants that Customer is not: (i) located in a country that is subject to a United States or Canadian government embargo, or that has been designated by the United States or Canadian government as a ‘terrorist supporting’ country; or (ii) listed on any United States or Canadian government list of prohibited or restricted parties. Customer shall at its own expense, defend the Peraso Indemnified Parties in any action, suit or proceeding arising from or relating to any breach of this Section by Customer and shall indemnify and hold the Peraso Indemnified Parties harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded in any such any action, suit or proceeding against any of the Peraso Indemnified Parties by a court of competent jurisdiction.
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