LICENSE AGREEMENT FOR QCIFY EMBEDDED SOFTWARE

IMPORTANT – PLEASE CAREFULLY READ THE TERMS OF THIS LICENSE AGREEMENT (THE “AGREEMENT”) WHICH GOVERNS THE USE OF THE FIRMWARE AND SOFTWARE EMBEDDED OR INSTALLED (“EMBEDDED SOFTWARE”) IN QCIFY’S EQUIPMENT, DEVICES, AND PRODUCTS (“QCIFY PRODUCTS”) PURCHASED BY YOU FROM QCIFY PURSUANT TO A WRITTEN PURCHASE ORDER. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN QCIFY, INC. (“QCIFY”) AND THE PERSON OR ENTITY ON BEHALF OF WHOM THE QCIFY PRODUCT WAS ORDERED PURSUANT TO A WRITTEN PURCHASE ORDER (SUCH PERSON OR ENTITY, THE “CUSTOMER”).
BY ACTIVATING OR OTHERWISE USING THE QCIFY PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT, INCLUDING, THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, TERMINATION, AND ARBITRATION PROVISIONS BELOW, IS BINDING UPON CUSTOMER, AND UPON ANY PERSON OR ENTITY WHO USES THE QCIFY PRODUCT ON THE CUSTOMER’S BEHALF. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF CUSTOMER, DO NOT ENTER INTO THIS AGREEMENT AND DO NOT USE THE QCIFY PRODUCT.

1. License Grant. Subject to the terms and conditions of this Agreement, Qcify hereby grants to Customer a non-exclusive, non-transferable, limited license to execute and use the Embedded Software solely on the applicable Qcify Product for its own internal business operations and in accordance with the applicable operating manuals, instructions, or documentation (“Documentation”) for such Qcify Product, which Customer agrees to review prior to using the Qcify Product. The Embedded Software may only be used on the Qcify Product in which it was initially installed ; or in the event of the inoperability of that Qcify Product, on a replacement Qcify Product provided to you by Qcify, or an authorized dealer, pursuant to the Limited Warranty of Section 5, unless otherwise mandated under applicable law. Customer agrees that Customer will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this Agreement, except in the event of a sale or transfer of ownership of the Qcify Product; provided, Customer agrees that Customer shall require such transferee to accept terms no less restrictive that those in this Agreement.

2. Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer shall not, and shall ensure that no third party shall, (i) reproduce, modify, make derivative works of, translate, adapt, disassemble, reverse compile or reverse engineer any part of the Embedded Software, nor attempt to create the source code from the object code for the Embedded Software; (iii) rent, lease, distribute, host, publish, disclose, or otherwise commercially exploit the Embedded Software or make the Embedded Software available to any third party other than as expressly permitted by this Agreement; (b) except as expressly stated herein, no part of the Embedded Software may be transmitted in any form or by any means, including electronic, mechanical, photocopying, recording or via a hacking device or other means; provided, Customer shall be permitted to received updates to the Embedded Software authorized by Qcify; and (c) any future release, update, or other addition to functionality of the Embedded Software shall be subject to the terms of this Agreement, unless Qcify states otherwise in a signed writing by its authorized representative. Qcify is not obligated to provide any services (including any updates or upgrades to the Embedded Software) under this Agreement. Customer shall preserve all copyright and other proprietary rights notices in the Embedded Software, except as expressly permitted in writing by Qcify. Customer acknowledges and agrees that the Embedded Software is proprietary to Qcify, or its licensors, and is protected under copyright law, trade secret law, and laws governing confidential information. Customer shall maintain the confidentiality of the Embedded Software and the source code of the Embedded Software, regardless of whether the Embedded Software is labeled or marked with any proprietary legend or notice that indicates its confidential nature.

3. Third Party Software. The copyrights for certain portions of the Embedded Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located on a display, online, or elsewhere and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, Customer is also accepting such additional terms and conditions, if any, set forth therein. Certain items of independent, third-party code may be included in the Embedded Software that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). Such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this Agreement restricts Customer’s right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.

4. Qcify’s Rights. Qcify, and its licensors, retain all right, title, and interest, including all intellectual property rights, in and to the Embedded Software (including any and all copies thereof) and any and all modifications, updates, and enhancements thereto. Any rights not expressly granted by Qcify in this Agreement are reserved. Customer acknowledges that it acquires no ownership interest in the Embedded Software. No implied licenses are granted by Qcify. In addition, Customer hereby licenses any and all aggregated non-personally identifiable data or information resulting from Customer’s use of the Embedded Software on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for Qcify to use and exploit in any manner and for any purpose.

5. Limited Warranty. For a period of one (1) year from the date of shipment of the Qcify Product (the “Warranty Period”), Qcify warrants, for Customer’s benefit alone and not for the benefit of any other party, that when used in accordance with the applicable Documentation (English language only), the Embedded Software will perform substantially in accordance with the specifications set forth in such Documentation (the “Limited Warranty”). Qcify does not warrant that Customer’s use of such Embedded Software will be error-free or uninterrupted, or that every error will be corrected. Qcify’s sole obligation, and Customer’s exclusive remedy for breach of the Limited Warranty, Qcify will, at Qcify’s option, repair or replace the non-performing Embedded Software. Notwithstanding anything in this Agreement to the contrary, Qcify will have no responsibility or liability of any kind, whether for breach of warranty or otherwise arising or resulting from: (a) any use of such Embedded Software other than in accordance with this Agreement; (b) any modification of such Embedded Software by anyone other than Qcify or contractors authorized in writing by Qcify; (c) any such Embedded Software rendered defective or non-conforming, in whole or in part, due to: (i) neglect, misuse, electrical or electromagnetic stress, accident, fire or other hazard, (ii) improper testing, handling, storage, transportation, operation, interconnection, or installation by anyone other than Qcify or contractors authorized in writing by Qcify, or (iii) any other cause beyond the range of normal use of such Embedded Software.

6. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5 ABOVE, THE EMBEDDED SOFTWARE IS PROVIDED TO CUSTOMER ON AN “AS-IS” BASIS. QCIFY DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES RELATING TO THE EMBEDDED SOFTWARE, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. QCIFY DOES NOT WARRANT THAT USE OF THE EMBEDDED SOFTWARE WILL BE UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE EMBEDDED SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

7. Limitation of Remedies and Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL QCIFY BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS OR CONDITIONS RELATED THERETO UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OE FOR ANY LOSS OF REVENUES AND LOSS OF PROFITS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QCIFY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID TO QCIFY FOR THE SPECIFIC QCIFY PRODUCT THAT GAVE RISE TO THE LIABILITY. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN CUSTOMER AND QCIFY.

8. Application of Limitations and Disclaimers to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 6 and 7 above may not apply to Customer if Customer is a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to consumer Customers only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such Customer is located.

9. Termination. Qcify may terminate the license granted under this Agreement upon written notice of termination provided to Customer in the event Customer violates any material term of this Agreement pertaining to Customer’s use of the Embedded Software or Qcify’s rights, including without limitation, the provisions of Sections 1 and 2 above.

10. Export. The Qcify Product, Embedded Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Qcify, or any products utilizing such data, in violation of the United States export laws or regulations. Customer will indemnify and hold Qcify harmless from any and all claims, losses, liabilities, damages, fines,
penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this Section.

11. Notices. All notices to Qcify shall be sent by certified or registered mail to Qcify, Inc., 1116 Shoreline Dr, San Mateo, CA 94404. All notices to Qcify shall be effective upon receipt. All notice required to be given to Customer shall, in Qcify’s sole discretion, either be sent via certified or registered mail to the address given to Qcify or an authorized representative of Qcify, in connection with your purchase of the Qcify Product. Either method of notification used by Qcify shall be effective upon dispatch. Customer agrees to notify Qcify of any change of address in the manner set forth above.

12. Governing Law. These Terms will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13. Dispute Resolution. Before resorting to formal dispute resolution in accordance with this Section, Qcify encourages Customer to first contact Qcify directly to seek a resolution. Customer and Qcify agree that any and all disputes or claims may arise between Customer and Qcify relating in any way to this Agreement or Customer’s use, or inability to use, the Embedded Software, shall be resolved exclusively through final, binding and confidential arbitration. The location of arbitration shall be Santa Clara County, California, USA, and the arbitration shall be conducted under the rules of the American Arbitration Association, as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction. Notwithstanding anything in these Terms to the contrary, to the extent Customer has in any manner violated or threatened to violate any of Qcify’s intellectual property rights, Qcify may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, and Customer consents to the personal jurisdiction and exclusive venue in such courts.

14. Miscellaneous. Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties with respect to the subject matter hereof are expressly canceled. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and agreed to by both parties. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Customer agrees that this Agreement will not be construed against Qcify by virtue of having drafted them. The official text of this Agreement, including the user interface for the Qcify Product, (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Customer agrees that Qcify shall not be responsible for any errors in operation of the Qcify Product that arise from (i) any failure to convert the user interface into a language other than English, (ii) any misunderstanding or misinterpretation of the user interface by Customer and any related consequences thereof. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.

15. Questions or Additional Information. If Customer has questions regarding this Agreement, please send an e-mail to ssales@qcify.com