1.0 LICENSED PRODUCT WARRANTY & SUPPORT
1.1. Warranty for Relimetrics Product Hardware
1.2. Warranty for Relimetrics Product Software
1.3. Support Contact
2.0 PAYMENT CONDITIONS
3.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
3.1. Indemnification
3.2. Limitation of Liability
4.0 INTELLECTUAL PROPERTY
5.0 CONFIDENTIALITY
5.1. Confidential Information
5.2. Non-Disclosure and Non-Use of Confidential Information
5.3. Permitted Disclosures
6.0 GOVERNING LAW / VENUE
7.0 TERM AND TERMINATION
8.0 GENERAL PROVISIONS
For purposes of this General Terms and Conditions (“GTC):
“Relimetrics Product” means the Relimetrics’ ReliVision Product Suite (“ReliVision”) and HardwareSetups for Quality Assurance Automation including a) Robotic MVS, b) Static MVS and c) Scanning MVS.
“Professional Service Fees” means the fees for services provided to the Client including product supportand maintenance fees payable by the Client to the Supplier.
“License Fees” means the fees for licensing Relimetrics Product.
“Datasets” means the data processed using Relimetrics Product.
“Results” means the output obtained by applying a Rule to Datasets via the application of Relimetrics Product.
“Rules” means [algorithms operating as part of Relimetrics Product for the purpose of generatingResults from Datasets].
1.0 LICENSED PRODUCT WARRANTY & SUPPORT
1.1 Warranty for the Relimetrics Product – Hardware
- The Supplier warrants the functionality and the performance of the hardware components of theRelimetrics Product for 12 months. The warranty period shall commence upon shipment of the hardwarecomponents to the Client.
- During the warranty period, in case of a defective hardware component, the Supplier will exchange thedefective component by a non-defective component and replace it at no-cost to the Client.
- The Client shall comply with the specifications, notes, guidelines and conditions in the technical notes,assembly, operating and operating instructions, in particular with regard to the conditions of use of theproducts (e.g. oiling notes, quality of compressed air or other operating media, ambient conditions) andother documents relating to the products during the planning, construction, assembly, connection,installation, commissioning, operation and maintenance of the products; in particular the Client shall carryout any maintenance work properly and use recommended components. Warranty claims for defectsresulting from the violation of this obligation are excluded.
- The Client shall comply with the specifications, notes, guidelines and conditions in the technical notes,assembly, operating and operating instructions, in particular with regard to the conditions of use of theproducts (e.g. oiling notes, quality of compressed air or other operating media, ambient conditions) andother documents relating to the products during the planning, construction, assembly, connection,installation, commissioning, operation and maintenance of the products; in particular the Client shall carryout any maintenance work properly and use recommended components. Warranty claims for defectsresulting from the violation of this obligation are excluded.
- The Client shall comply with the specifications, notes, guidelines and conditions in the technical notes,assembly, operating and operating instructions, in particular with regard to the conditions of use of theproducts (e.g. oiling notes, quality of compressed air or other operating media, ambient conditions) andother documents relating to the products during the planning, construction, assembly, connection,installation, commissioning, operation and maintenance of the products; in particular the Client shall carryout any maintenance work properly and use recommended components. Warranty claims for defectsresulting from the violation of this obligation are excluded.
- The Client shall comply with the specifications, notes, guidelines and conditions in the technical notes,assembly, operating and operating instructions, in particular with regard to the conditions of use of theproducts (e.g. oiling notes, quality of compressed air or other operating media, ambient conditions) andother documents relating to the products during the planning, construction, assembly, connection,installation, commissioning, operation and maintenance of the products; in particular the Client shall carryout any maintenance work properly and use recommended components. Warranty claims for defectsresulting from the violation of this obligation are excluded.
1.2 Warranty for the Supplier Product – Licensed Software
- The Licensed Software product is provided to the Client on an “as is” basis at the point of license activation.The Supplier warrants the functionality and the performance of its software running together with thehardware of the Relimetrics Product during the licensing term. The warranty period shall commence uponactivation of the license.
- The Supplier warrants that the Licensed Software shall be free from errors to the best of Supplier’sknowledge, shall comply with the documentation and the specifications in all respects, and shall providethe functions and features and operate in the manner described in this GTC; operations contemplated bythis GTC.
- The Supplier warrants that the Licensed Software is at all times during the license period in compliancewith applicable law including, without limitation any approval requirements, the applicable data protectionor telecommunications laws or any other regulatory requirements.
- The Supplier warrants that the use of the Licensed Software by the Client does not infringe ormisappropriate any patent, copyright, trademark, trade secret or other intellectual property, proprietary orprivacy rights (“Proprietary Rights”) of any third party.
- The Supplier warrants that the Supplier will use commercially reasonable endeavors within its control toensure that the Licensed Software is available to the Client 99.5% of the time during normal businesshours in any one calendar month.
- Disclaimer. The SUPPLIER DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEETALL OF THE CLIENT’S (LICENSEE’S) REQUIREMENTS, THAT THE USE OR OPERATION OF THELICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE WARRANTIES ABOVEARE FOR THE LICENSED SOFTWARE PROVIDED TO THE CLIENT AT THE POINT OF LICENSEACTIVATION AND SOFTWARE TRAINED OR MODIFIED BY THE SUPPLIER AND WILL NOT APPLYTO MODIFICATIONS TO THE LICENSED SOFTWARE IF THE CLIENT RE-TRAINS ALGORITHMS ONITS OWN. ANY CHANGES TO THE TO BE INSPECTED PRODUCTS AND CONFIGURATIONS MAYREQUIRE RE-TRAINING. EXCLUDING THE WARRANTIES STATED IN THIS GTC, THE SUPPLIERMAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OROTHERWISE RELATING TO THE LICENSED SOFTWARE. THE SUPPLIER SPECIFICALLYDISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISEIN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. THE PARTIESEXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTY CONSTITUTES ANESSENTIAL PART OF THIS AGREEMENT.
- During an active Licensing Period, a defect / error exists if the Licensed Software does not fulfill thefunctions and features stated in the product description, delivers incorrect results, uncontrollably interruptsits running or otherwise does not function properly, so that the use of the Licensed Software is preventedor impaired. The Supplier will use reasonable efforts to correct defects / errors, if any, which are discoveredwithin the warranty period and provide the Client with remote assistance. This includes next business daysupport of a technician of the Supplier via phone or e-mail, and release of appropriate bug fixes, providedthat the Supplier has an active VPN tunnel access to diagnose the problem. The Client acknowledges thatthe Supplier's ability to provide correction hereunder may require downtime of the Licensed Software.
- In the event of defects, the Client shall be obliged to provide the Supplier with all information necessaryfor error analysis and subsequent performance and to grant the Supplier or the persons commissioned bythe Supplier unrestricted access to the hardware on which the Supplier’s software is installed. The Client'snotification shall – if possible - contain a detailed description, in writing, of any malfunction of the LicensedSoftware, including the frequency of the malfunction and the conditions surrounding the malfunction. IfSupplier carries out an error analysis at the Client’s request and it turns out that there is no error whichConfidential -- 4Supplier is obliged to remedy, the Supplier can invoice the Client for the corresponding expenditure on thebasis of the Supplier's applicable hourly rates.
- The Supplier shall not be liable for errors in the Licensed Software, which have been caused by applicationerrors on the part of the Client and which could have been avoided if the program documentation hadbeen consulted carefully; this also applies to non-existent or insufficient backup measures; due to theactions of a virus or other external influences for which the Supplier is not responsible, such as fire,accidents, power failure, etc.; which are based on the fact that the software was used in connection witha hardware product other than that specified by the Supplier or in an operating environment other thanthat approved by the Supplier, or are attributable to faults in the hardware, the operating system orcomputer programs of other manufacturers which the Client uses in connection with the software; whichare based on the fact that the software was changed by the Client or a third party without authorization.
- For all on-site technical troubleshooting Supplier is not obliged to remedy, Supplier will charge the Client 100 EUR per hour per technician.
1.3 Support Contact
Supplier agrees to provide maintenance and support for the Relimetrics Product as set forth below:
Hours of Support: per email 24h x 7; per phone during business hours in each geography the supplier supports Mo – Fr (9 a.m. – 5 p.m.)
Telephone Number: +49 30 6392 2929
Supplier support mail address: support@relimetrics.com
Supplier Web Site: www.relimetrics.com
2.0 PAYMENT CONDITIONS
- Purchase Order. The Supplier shall not perform any work without a formal purchase order issued by theClient and accepted by the Supplier.
- Payment. The following payment conditions shall apply: Payment thirty (30) days NET after the invoicingdate. All payments of invoiced amounts must be paid in full in EUROs or in USD to Relimetrics, Inc. or itssubsidiary, Relimetrics GmbH, at the address written in the invoice. The Client acknowledges that if apayment is delayed for more than thirty (30) days, the Supplier in addition to any other remedy availableto the Supplier and not as an election of remedies, may suspend its performance hereunder until no pastdue payments are outstanding.
- Taxes. All payments and amounts due are NET and shall be paid without deduction or set-off or counterclaim, free and clear of any restrictions or conditions, and without deduction for any taxes, levies, imposts,duties, fees, deductions, assessments, withholdings or other governmental charges (each and all,“Taxes”). The Client will pay or reimburse all Taxes (VAT), based on laws and regulations.
3.0 INDEMNIFICATION AND LIMITIATION OF LIABILITY
3.1 Indemnification
Both the Supplier and the Client shall indemnify and hold each other harmless from and against any thirdparty claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’sfees and court costs) (collectively, the “Claims”) arising out of (1) violation of any laws or regulations, or (2)any gross negligence or willful misconduct. The indemnifying party shall, at its own expense, defend theConfidential -- 5indemnified party against any Claim provided that (a) the indemnified party promptly notifies theindemnifying Party of any Claims; (b) the Indemnifying Party has sole control of the settlement or defenseaction against the Indemnified Party to which the said indemnity relates to the extent that such settlementor defense action neither contradict the benefit of the Indemnified Party nor have any impact on the propertyor intellectual property of the Indemnified Party without the prior written consent from the indemnified party;and (c) the Indemnified Party reasonably cooperates with the Indemnifying Party to facilitate suchsettlement or defense. Except in case the Indemnifying Party refuses to fully defend and hold harmless theIndemnified Party against subject losses, in no event shall the Indemnified Party be entitled to settle Claimssubject to indemnification without the prior written consent of the Indemnifying Party, and the IndemnifyingParty shall not be liable for any settlement amounts that are effectuated without the Indemnifying Party’sconsent, provided such consent shall not be unreasonably withheld, delayed or conditioned. TheIndemnifying Party may settle any Claim on behalf of the Indemnified Party without the Indemnified Party’sconsent so long as the only consideration given by the Indemnified Party is monetary and paid by theIndemnifying Party. Except as set forth in the preceding sentence, the Indemnifying Party may not settleany Claim or consent to any judgment without first obtaining the written consent of the Indemnified Party,such consent not to be unreasonably withheld, delayed or conditioned. The Indemnified Party mayparticipate in its own defense at its own expense.
3.2 Limitation of Liability
EXCEPT WITH RESPECT TO BREACHES INVOLVING THE DISCLOSURE OF CONFIDENTIALINFORMATION, AND WITHOUT LIMITING THE SUPPLIER’S AND THE CLIENT’S RESPECTIVEINDEMNIFICATION OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR INCONNECTION WITH THIS GTC, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ANDWHETHER OR NOT THE SUPPLIER OR THE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. EXCEPT WITH RESPECT TO THE SUPPLIER’S INTELLECTUAL PROPERTYINDEMNIFICATION OBLIGATION HEREUNDER, IN NO EVENT WILL THE SUPPLIER’S LIABILITYARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY THECLIENT’ (LICENSEE) FOR THE SUPPLIER SERVICES GIVING RISE TO THE LIABILITY DURING THEONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THESUPPLIER AND THE CLIENT AGREE THAT THE PRECEDING LIMITATIONS REPRESENT AREASONABLE ALLOCATION OF RISK.
4.0 INTELLECTUAL PROPERTY
- Relimetrics Product License. Subject to the Client’s payment of the licensing fees and its conformanceto the licensing terms and conditions set in this GTC, the Supplier will grant the Client a non-exclusive,limited, non-transferable license during the Term to use the Relimetrics Products, in object code form only,for the sole purpose of applying Rules to Datasets in order to generate Results.
- License Restrictions. Except for the rights granted in this Section, the Client (Licensee) may not: (a)resell, sublicense, reproduce (except for a reasonable number of copies for backup or archival purposes),distribute, transfer or otherwise grant access to or transmit the Relimetrics Product to any third party forany purpose, or (b) modify, adapt, alter, translate, or create derivative works from the Relimetrics Productand its software, or (c) allow any third party to resell, sublicense, distribute, transfer or otherwise grantaccess to or transmit the Relimetrics Product for any purpose, or (d) reverse engineer, decompile,disassemble, or otherwise attempt (e) to defeat, avoid, bypass, remove, deactivate or otherwise circumventany software protection mechanisms in the Relimetrics Product, including without limitation any suchmechanism used to restrict or control the functionality of the Relimetrics Product or (f) to derive theRelimetrics Product software's source code or the underlying ideas, algorithms, structure or organizationfrom the Relimetrics Product or Rules; or (g) provide or make available the Relimetrics Product to any thirdConfidential -- 6party; or (h) distribute, transfer or otherwise grant access to or transmit the Relimetrics Product software toany third party; or (i) remove or obfuscate any product identification, copyright or other proprietary noticefrom any element of the Relimetrics Product hardware and software documentation; or (j) use, or authorizeto use, the Relimetrics Product software as on-demand software (e.g. SaaS, PaaS, or a similar model) orotherwise permit any person or entity to have access to the Relimetrics Product software by means of atime sharing, remote computing services, networking, batch processing, service bureau or time sharingarrangement.
- Client Ownership. The licensing of Relimetrics Product grants the Client (Licensee) no title to orownership of the Relimetrics Product hardware and software products and its components, except for thelimited right of using the Relimetrics Product software in connection with the Client’s parts and images, inobject code form only, for the sole purpose of applying algorithms operating as part of the RelimetricsProduct Software to Datasets, including images, features, signals, to generate results, meaning the outputobtained by applying a Rule to Datasets via the application of the Relimetrics Product Software. All data,copyrights, reports, and works of authorship developed while using the Relimetrics Product software at the Client’s premises shall be the sole property of the Client.
- Reserved Rights. Except for the limited rights granted in this Section 8, the Supplier reserves all right, titleand interest in and to the Relimetrics Product and its components, including without limitation the right tomarket and distribute any Supplier’s products and services to any third party, either alone or combined withthird party services and products, either directly by the Supplier or through third parties. The Clientacknowledges that nothing in this GTC is intended or will be construed to limit in any way the right or powerof the Supplier to grant to any other person a license to use any Supplier’s products or services. In addition,Licensee acknowledges that the Supplier has expended considerable time, effort and funds to compile theRules. Title to all Rules configured by the Supplier shall vest and at all times remain vested in the Supplier.Licensee shall have no rights with respect to the Rules except as set forth in this Sections 2. Except asotherwise provided herein, including, but not limited to Section 8 of this Agreement, immediately followingthe expiration or earlier termination of this Agreement, Licensee shall cease all use of the Rules, purge theRules from its records and destroy all copies of the Rules in its possession or control, and Licensee shalldeliver written certification of such destruction to the Supplier no later than thirty (30) days following theexpiration or earlier termination of this Agreement.
- Items delivered under this GTC such as operation and maintenance manuals shall be delivered with theright to copy for internal use and/or copy and deliver with the right to use by the Client.
- The Supplier warrants that the Services performed or delivered under this GTC will not infringe or otherwiseviolate the intellectual property rights of any third party in the United States or any foreign country.
5.0 CONFIDENTIALITY
5.1 Confidential Information
The Contract Partners agree that during the course of the Services, each Contract Partner (the “DisclosingParty”) may disclose to the other Contract Partner (the “Receiving Party”) certain Confidential Information(defined below) of such disclosing party. “Confidential Information” means any information, technical dataor know-how, including, but not limited to, that which relates to research, products, sfcalervices, customers,markets, software, developments, inventions, processes, designs, drawings, engineering, marketing orfinances of the Disclosing Party. The Receiving Party shall treat the content and existence of this GTC asConfidential Information. Each Contract Partner is forbidden from using the other Contract Partner’s name,trademark or logo without obtaining the other Contract Partner’s prior written consent. ConfidentialInformation does not include information, technical data or know-how which (i) is in the possession of thereceiving party at the time of disclosure as shown by the Receiving Party’s files and records immediatelyprior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the publicknowledge or literature, not as a result of any breach of the obligations by the Receiving Party, or (iii) is approved for release by the Disclosing Party, or (iv) is independently developed by the Receiving Partywithout the use of any Confidential Information of the Disclosing Party.
5.2 Non-Disclosure and Non-Use of Confidential Information
The Receiving Party agrees not to use the Confidential Information disclosed to it by the Disclosing Partyfor its own use or for any purpose except as necessary for the purposes of this GTC. The Receiving Partyshall not disclose the Confidential Information of the Disclosing Party to third parties or to the ReceivingParty’s employees except employees who are required to have the said Confidential Information in orderto carry out the Receiving Party’s obligations hereunder. The Receiving Party’s employees to whomConfidential Information of the Disclosing Party is disclosed shall be bound by obligations of confidentialityat least as protective as set forth herein. The Receiving Party agrees that it will use the same standard ofcare that it uses in protecting its own confidential information to protect the secrecy of and avoid disclosureor use of Confidential Information of the Disclosing Party and to prevent it from falling into the public domainor the possession of unauthorized persons, but in no case less than reasonable care. The Receiving Partyagrees to notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Informationthat may come to its attention. In the event of any termination of this GTC, the Receiving Party shall returnto the Disclosing Party all copies of Disclosing Party’s Confidential Information in the Receiving Party’spossession or control.
5.3 Permitted Disclosures
Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information, including theexistence and the terms of this , to the extent such disclosure is reasonably necessary to: (a) prosecuteor defend litigation, (b) exercise rights hereunder provided such disclosure is covered by terms ofconfidentiality similar to those set forth herein, (c) facilitate discussions with prospective investors inconnection with financing arrangements or a proposed acquisition of such party, subject to appropriateconfidentiality agreements, and (d) comply with applicable governmental laws, regulations and orders. Inthe event that any of the Contract Partnerts shall reasonably deem it necessary to disclose, pursuant toclauses (a) or (d) above, the Confidential Information belonging to the other party, the Disclosing Partyshall to the extent possible give reasonable advance notice of such disclosure to the other party and takereasonable measures to ensure confidential treatment of such Confidential Information.
6.0 GOVERNING LAW / VENUE
This GTC will be governed and construed under the laws of Germany. In no event shall this agreement begoverned by the United Nations convention on contracts for the international sales of goods. All disputesarising out of or related to this GTC shall be subject to the exclusive jurisdiction and venue of the Berlincourts located in Germany.
7.0 TERM AND TERMINATION
- Term. Monthly or annual based on the Client’s choice.
- Termination. Both the Supplier and the Client can terminate their engagement with a 30-day written noticefor cause or without any cause. In the event of termination, the Supplier will discontinue all work thereunderand return all Confidential Information provided by the Client. The effect of termination is as follows:
a. Professional Services. Upon termination of any Statement(s) of Work and/or Purchase Order(s),the Supplier will immediately provide the Client with any and all work in progress or completed priorto the termination date. The Client will pay the Supplier an equitable amount for the partially completed work in progress and the full agreed amount for the completed Professional Servicesand/or Deliverables provided and accepted prior to the date of termination.
b. Licensed Products (without cause) – Upon termination without cause, the Client (Licensee) shallhave the right to continue to use the Licensed Products until the end of the initially agreed licenseexpiration date at the beginning of the license term. The Supplier will not issue any refund for theearly termination of the license or any other part of the solution. The Supplier will also not continueto provide Support and Maintenance to the Client under the terms of the Agreement.
c. Licensed Products (with cause) – Upon termination with cause, the Supplier will issue a refundwithin 90 business days using the formula below = Total license fee paid for X number of years / #of total months of the license period * Remaining # of full months until License Expiration. TheSupplier will not issue any additional refund for any other part of the solution. Upon terminationwith cause, the Client (Licensee) will immediately stop using the Licensed Products. Upontermination with cause, the Supplier will also immediately stop providing Support and Maintenanceto the Client (Licensee). - Survival. The provisions regarding data and intellectual property ownership, records and audits,disclaimer of warranties, confidentiality, indemnification, limitations of liability, consequences oftermination, indemnification and any accrued payment obligations shall survive the expiration ortermination of this GTC for any reason. Mutual confidentiality obligations shall survive for three (3) yearsfollowing the expiration or termination of this GTC for any reason. All other rights and obligations of theContract Partners shall cease upon the expiration or termination of this GTC.
- In the event of a termination, the Supplier shall in good faith cooperate with the Client in the orderly transferof all remaining work as instructed by the Client, and to transfer to the Client all work in progress applicablewithin twenty (20) working days from the date of cancellation or termination. The Supplier shall be entitledto invoice Client for all work performed as of the date of the termination.
8.0 GENERAL PROVISIONS
- Force Majeure. The Supplier shall not be held responsible for any delay or failure in performancehereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of anysubcontract, act of sabotage, terrorism, riot, accident, delay of carrier or supplier, internet outages,voluntary or mandatory compliance with any governmental act, regulation or request, act of God or bypublic enemy, or any act or omission or other cause beyond the Supplier’s control.
- Independent Contractor. The Supplier is an independent contractor, and nothing in this GTC creates anypartnership, joint venture, agency, franchise, sales or employment relationship between the Supplier andthe Client.
- Export Control. The Client understands and acknowledges that the Supplier is subject to regulation byagencies of the U.S. government, including the U.S. Department of Commerce which prohibits export ordiversion of certain products, information, technology and technical data to certain countries.
- Order of Work. The Supplier shall solely be responsible for the manner in which services are carried out.
- VPN Tunnel Access. The Client shall implement the necessary technical prerequisites for remotemaintenance and commits to providing the Supplier VPN tunnel access to the Relimetrics Producthardware and all the systems impacted by the Relimetrics Product if required for the purpose of remotemaintenance. The Supplier is capable and entitled to provide Services remotely when required andprovided that the VPN tunnel access to the Client is active.
