Mocana End User License Agreement

BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE YOU AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT“), AND YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. YOU WARRANT THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS.

YOUR USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE SOFTWARE.

About This Agreement

This Agreement applies to all Software and documentation made available by Mocana Corporation (“Mocana“) to you. “Software” means the Mocana software product that requires acceptance of this Agreement, and any copies made by or on your behalf, in object code format, including without limitation firmware. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available to you. “Documentation” means the Mocana documentation that may accompany the Software. You acknowledge and agree that Mocana may update the terms and conditions of this Agreement from time to time without notice to You. The version of this Agreement current at the time you download, install or use the Software will be subject to such version of this Agreement.

1. License Grant and Use Rights

The Software and Documentation are licensed, not sold, to you by Mocana. Subject to the terms and conditions of this Agreement and the terms of your ordering document accepted in writing by Mocana which evidences your authorization to use the Software and the authorized scope of use of the Software (“Entitlement”), including payment of the purchase price and/or all fees, you are hereby granted a personal, limited, non-exclusive, non-sublicensable and non-transferable right to the number of copies of the object code version of the Software specified in the Entitlement for internal use purposes only (“Permitted Use”). The Entitlement shall be specified in writing on the order or equivalent document issued by Mocana to you. The Entitlement shall specify the name of the product, the number of Licensed Units and the usage level and feature set authorized. Your Permitted Use is limited to the number of Licensed Units stated in your Entitlement. “Licensed Unit” means the unit of measure by which your use of Software is licensed, as described in your Entitlement. If you have multiple Licensed Units, you may install and use as many copies of the Software as you have Licensed Units only as permitted herein. Use of the Software outside the scope of Your Entitlement is unauthorized and shall constitute a material breach of this EULA and void the warranty and/or support obligations of which you may otherwise be entitled. Mocana and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to you. There are no implied licenses granted by Mocana under this Agreement. Except as specified above, you shall have no rights with respect to the Software.

2. Use Limitations

You may not use the Software or Documentation except as permitted in the Entitlement and this Agreement. You may not: (i) alter, modify or create any derivative works of the Software, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; (ii) port, reverse compile, reverse assemble, reverse engineer, or otherwise attempt to separate any of the components of the Software or derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction, in which case you agree to provide Mocana with at least ninety (90) days advance written notice of your belief that such action is warranted and permitted, and provided that you give Mocana the opportunity to determine if such action is warranted under the law); (iii) copy, redistribute, encumber, sell, rent, lease, license, sublicense, or otherwise transfer rights to the Software or Documentation; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Documentation; (v) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Software. You may not release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of Mocana for each such release. You may not cause or permit any third party to do any of the foregoing.

3. Proprietary Rights

You acknowledge and agree that the Software belongs to Mocana or its licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property, including all modifications and derivative works of any of the foregoing. Mocana and its licensors retain all right, title and interest in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties. You may not make any copies of the Software except for your own personal use. Any and all other copies of the Software or Documentation made by you are in violation of this license. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content. All trademarks used in connection with the Software and Documentation are owned by Mocana, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by you to Mocana with respect to the Software shall be Mocana’s property and deemed Confidential Information of Mocana.

4. Term and Termination

This Agreement and your right to use the Software and Documentation may be terminated by you at any time upon written notice. This Agreement automatically terminates if you or any of your employees or consultants fail to comply with its terms and conditions. Immediately upon termination of this Agreement for any reason, all rights granted to you hereunder will cease and you shall return or destroy all copies of the Software and Documentation in your possession, custody or control and if requested you shall certify to Mocana in writing that such return or destruction has occurred. The following sections of this Agreement survive any expiration or termination hereof: 6, 7, 9, 10 and 13.

5. NO WARRANTY

EXCEPT AS EXPRESSLY PROVIDED IN THE ENTITLEMENT, YOU AGREE THAT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND THAT COMPANY AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS. COMPANY AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF COMPANY KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE), RELATED TO THE SOFTWARE OR DOCUMENTATION, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT. COMPANY AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.

6. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, MOCANA AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, COMPANY’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE SOFTWARE FOUND TO BE DEFECTIVE, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF COMPANY TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.

7. Confidentiality

"Confidential Information" shall mean the Software and Documentation and all other information disclosed to you that Mocana characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 5 years after termination of this Agreement, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Mocana. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Mocana in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Mocana in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Mocana prior to such disclosure to allow Mocana an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Mocana in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

8. Injunctive Relief

You acknowledge and agree that your breach or threatened breach of this Agreement shall cause Mocana irreparable damage for which recovery of money damages would be inadequate and that Mocana therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

9. Export Controls

The Software and Documentation and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software and/or Documentation, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you agree to comply with all export laws and other applicable laws.

10. U.S. Government End Users

The Software and Documentation each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101. The Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.

11. Miscellaneous
  1. This Agreement may only be modified by a written amendment signed by an authorized executive of Mocana. Capitalized terms not defined herein shall have the meaning set forth in the Purchase Terms and Conditions.
  2. Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of California, U.S.A., excluding its conflict of law provisions
  3. You expressly agree that jurisdiction for any claim or dispute arising from the use of the Mocana Software resides in the federal and state courts situated in the Santa Clara County, California, U.S.A., and you consent to the personal jurisdiction thereof.
  4. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
  5. If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties’ original intent, and the remaining portions remain in full force and effect, or Mocana may at its option terminate this Agreement.
  6. The controlling language of this Agreement is English.
  7. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
  8. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Mocana may assign this Agreement to any person or entity at its sole discretion.
  9. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.