Technology End User License Agreement
This Technology End User License Agreement, including any additional Order Form which by
this reference is incorporated herein, if applicable (this “Agreement”), is a binding agreement
between AYE3D Inc., a corporation formed under the laws of Quebec with its principal place of
business located at 814 Boulevard Guimond Suite 200, Longueil, QC, Canada (“Licensor”) and
you, as the person or entity making use of the AYE3D Materials (as defined) (“Licensee”).
LICENSOR PROVIDES THE AYE3D MATERIALS SOLELY ON THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT
LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY OPENING THE BOX IN WHICH
THE AYE3D MATERIALS WERE PROVIDED TO YOU AND POWER UP THE AYE3D
MATERIALS (RUNNING A COPY OF THE SOFTWARE IT CONTAINS), YOU (A)
ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY
ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL
AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A
CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY,
YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS
AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF
LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR
WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST
NOT RUN THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR
YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION,
OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY
EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT
ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF
ANY AYE3D MATERIALS.
1. Definitions. For purposes of this Agreement, the following terms have the
“AYE3D Materials” means the Software, specifications, documentation
and AYE3D systems and any and all other information, data, documents, materials,
works and other content, devices, methods, processes, Hardware, software and other
technologies and inventions that are provided or used by AYE3D concurrently with this
“Authorized Users” means solely those individuals authorized to use the
AYE3D Materials pursuant to the license granted under this Agreement, as set forth on
the Order Form, if applicable.
“Documentation” means user manuals, technical manuals, and any other
materials provided by Licensor, in printed, electronic, or other form, that describe the
installation, operation, use, or technical specifications of the AYE3D Materials.
“Hardware” means the computer monitors provided by Licensor for use
of the Software and all other AYE3D Materials.
“Intellectual Property Rights” means any and all registered and
unregistered rights granted, applied for, or otherwise now or hereafter in existence under
or related to any patent, copyright, trademark, trade secret, database protection, or other
intellectual property rights laws, and all similar or equivalent rights or forms of
protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“Licensor” has the meaning set forth in the preamble.
“Order Form” means the order form filled out and submitted by or on
behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for
the Software granted under this Agreement.
“Person” means an individual, corporation, partnership, joint venture,
limited liability company, governmental authority, unincorporated organization, trust,
association, or other entity.
“Software” means AYE3D’s software application, firmware or
applications forming part of the AYE3D Materials and embedded on the Hardware
allowing for a 3D viewing experience thereon and any third-party or other software that
AYE3D provides access to through the Hardware, and use of, and all new versions,
updates, revisions, improvements and modifications of the foregoing.
“Term” has the meaning set forth in Section 9.
“Third Party” means any Person other than Licensee or Licensor.
2. License Grant and Scope. Subject to and conditioned upon Licensee’s strict
compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to
Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term
to use, solely by and through its Authorized Users, the AYE3D Materials and Documentation,
solely as set forth in this Section 2 and subject to all conditions and limitations set forth in
Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable
solely by and through Licensee’s Authorized Users, to run the Software in accordance with the
Documentation solely on the Hardware provided to Licensee for Licensee’s internal business
purposes. Licensee shall not, and shall not allow any Person to, install or use any copy of the
Software other than the one preinstalled by Licensor on the provided Hardware.
3. Third-Party Materials. The AYE3D Materials may include software, content,
data, or other materials, including related documentation, that are owned by Persons other than
Licensor and that are provided to Licensee on licensee terms that are in addition to and/or
different from those contained in this Agreement (“Third-Party Licenses”). Licensee is bound
by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its
Authorized Users of any Third-Party License is also a breach of this Agreement.
4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to,
directly or indirectly:
(a) use (including make any copies of) the AYE3D Materials or
Documentation beyond the scope of the license granted under Section 2;
(b) provide any other Person, including any subcontractor, independent
contractor, affiliate, or service provider of Licensee, with access to or use of the AYE3D
Materials or Documentation;
(c) modify, translate, adapt, or otherwise create derivative works or
improvements, whether or not patentable, of the AYE3D Materials or Documentation or
any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software
or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to
derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright,
trademark, patent, or other intellectual property or proprietary rights notices provided on
or with the AYE3D Materials or Documentation, including any copy thereof;
(g) copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or
otherwise make available the AYE3D Materials, or any features or functionality of the
Software, to any Third Party for any reason, whether or not over a network or on a hosted
basis, including in connection with the internet or any web hosting, wide area network
(WAN), virtual private network (VPN), virtualization, time-sharing, service bureau,
software as a service, cloud, or other technology or service;
(i) use the AYE3D Materials or Documentation in violation of any law,
regulation, or rule; or
(j) use the AYE3D Materials or Documentation for purposes of competitive
analysis of the AYE3D Materials, the development of a competing software product or
service, or any other purpose that is to the Licensor’s commercial disadvantage.
5. Responsibility for Use of AYE3D Materials. Licensee is responsible and liable for
all uses of the AYE3D Materials and Documentation through access thereto provided by
Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing,
Licensee is responsible and liable for all actions and failures to take required actions with respect
to the AYE3D Materials and Documentation by its Authorized Users or by any other Person to
whom Licensee or an Authorized User may provide access to or use of the AYE3D Materials
and/or Documentation, whether such access or use is permitted by or in violation of this
6. Compliance Measures. The Software may contain technological copy protection
or other security features designed to prevent unauthorized use of the Software, including
features to protect against any use of the Software that is prohibited under Section 4. Licensee
shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement
any workaround to, any such copy protection or security features.
7. Collection and Use of Information.
(a) Licensee acknowledges that Licensor may, directly or indirectly through
the services of Third Parties, collect and store information regarding use of the Software
and about equipment on which the Software is installed or through which it otherwise is
accessed and used, through security measures included in the Software as described in
(b) Licensee agrees that the Licensor may use such information for any
purpose related to any use of the Software by Licensee or on Licensee’s equipment,
including but not limited to:
(i) improving the performance of the Software or developing Updates;
(ii) verifying Licensee’s compliance with the terms of this Agreement
and enforcing the Licensor’s rights, including all Intellectual Property Rights in
and to the Software.
8. Intellectual Property Rights. Licensee acknowledges and agrees that the Software
and Documentation are provided under license, and not sold, to Licensee. Licensee does not
acquire any ownership interest in the Software or Documentation under this Agreement, or any
other rights thereto, other than to use the same in accordance with the license granted and subject
to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain
its entire right, title, and interest in and to the Software and all Intellectual Property Rights
arising out of or relating to the Software, except as expressly granted to the Licensee in this
Agreement. Licensee shall safeguard all Software (including all copies thereof) from
infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly
notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual
Property Rights in the Software and fully cooperate with Licensor in any legal action taken by
Licensor to enforce its Intellectual Property Rights.
9. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect
until terminated as set forth herein (the “Term”).
(b) Licensee may terminate this Agreement by ceasing to use and destroying
all copies of the Software and Documentation.
(c) Licensor may terminate this Agreement, effective upon written notice to
Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure;
or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides
written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if
Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or
pursuant to any other insolvency law, makes or seeks to make a general assignment for
the benefit of its creditors or applies for, or consents to, the appointment of a trustee,
receiver, or custodian for a substantial part of its property.
(e) Upon expiration or earlier termination of this Agreement, the license
granted hereunder shall also terminate, and Licensee shall cease using all copies of the
Software and Documentation. No expiration or termination shall affect Licensee’s
obligation to pay all license fees or other consideration that may have become due before
such expiration or termination, or entitle Licensee to any refund, in each case except as
set forth in Section 10(c)(ii).
10. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
(a) Licensor warrants that, for a period of three (3) months following the
acquisition of the AYE3D Materials:
(i) any media on which the Software is provided and the Hardware
shipped to Licensee will be free of material damage and defects in materials and
workmanship under normal use; and
(ii) the Software will substantially contain the functionality described
in the Documentation, and when properly installed on a computer meeting the
specifications set forth in, and operated in accordance with, the Documentation,
will substantially perform in accordance therewith.
THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR
STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY
(b) The warranties set forth in Section 10(a)(i) and Section 10(a)(ii) will not
apply and will become null and void if Licensee breaches any provision of this
Agreement, or if Licensee, any Authorized User, or any other Person provided access to
the AYE3D Materials by Licensee or any Authorized User, whether or not in violation of
(i) installs or uses the Software on or in connection with any hardware
or software not specified in the Documentation;
(ii) modifies or damages the AYE3D Materials, or the media on which
it is provided, including abnormal physical or electrical stress; or
(iii) misuses the AYE3D Materials, including any use of the Software
other than as specified in the Documentation.
(c) If, during the period specified in Section 10(a), any Software covered by
the warranty set forth in such Section fails to perform substantially in accordance with the
Documentation, and such failure is not excluded from warranty pursuant to the Section
10(b), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such
failure, at its sole option, either:
(i) repair or replace the AYE3D Material, provided that Licensee
provides Licensor with all information Licensor reasonably requests to resolve the
reported failure, including sufficient information to enable the Licensor to
recreate such failure; or
(ii) refund a portion of the fees paid for such AYE3D Material, subject
to Licensee’s ceasing all use of the AYE3D Materials.
The remedies set forth in this Section 10(c) are Licensee’s sole remedies
and Licensor’s sole liability under this Agreement.
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION
10(a), THE AYE3D MATERIALS AND DOCUMENTATION ARE PROVIDED TO
LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT
WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS
AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE
PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE
AYE3D MATERIALS AND DOCUMENTATION, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY
ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE,
OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE
LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO
REPRESENTATION OF ANY KIND THAT THE AYE3D MATERIALS WILL MEET
THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE
COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS,
SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY
PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR
THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF
ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE
TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY,
OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS;
DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL;
LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR
SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO
ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE
TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM
INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY
INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR
PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR
WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a) All matters arising out of or relating to this Agreement shall be governed
by and construed in accordance with the laws of the Province of Quebec without giving
effect to any choice or conflict of law provision or rule. Any legal suit, action, or
proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby shall be instituted in the courts of the Province of Quebec in each case located in
the City of Montreal, and each party irrevocably submits to the exclusive jurisdiction of
such courts in any such legal suit, action, or proceeding. Service of process, summons,
notice, or other document by mail to such party’s address set forth herein shall be
effective service of process for any suit, action, or other proceeding brought in any such
(b) Licensor will not be responsible or liable to Licensee, or deemed in default
or breach hereunder by reason of any failure or delay in the performance of its
obligations hereunder where such failure or delay is due to strikes, labor disputes, civil
disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo,
natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of
electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction
of property, or any other circumstances or causes beyond Licensor’s reasonable control.
(c) This Agreement, together with any Order Form constitutes the sole and
entire agreement between Licensee and Licensor with respect to the subject matter
contained herein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with respect to such
(d) Licensee shall not assign or otherwise transfer any of its rights, or delegate
or otherwise transfer any of its obligations or performance, under this Agreement, in each
case whether voluntarily, involuntarily, by operation of law, or otherwise, without
Licensor’s prior written consent, which consent Licensor may give or withhold in its sole
discretion. No delegation or other transfer will relieve Licensee of any of its obligations
or performance under this Agreement. Any purported assignment, delegation, or transfer
in violation of this Section 12(d) is void. Licensor may freely assign or otherwise transfer
all or any of its rights, or delegate or otherwise transfer all or any of its obligations or
performance, under this Agreement without Licensee’s consent. This Agreement is
binding upon and inures to the benefit of the parties hereto and their respective permitted
successors and assigns.
(e) This Agreement is for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, expressed or implied, is
intended to or shall confer on any other Person any legal or equitable right, benefit, or
remedy of any nature whatsoever under or by reason of this Agreement.
(f) This Agreement may only be amended, modified, or supplemented by an
agreement in writing signed by each party hereto. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and signed by the
party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise,
or delay in exercising, any right, remedy, power, or privilege arising from this Agreement
shall operate or be construed as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power, or privilege.
(g) If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction.
(h) The Parties expressly agree that this Agreement be drawn up in the