End User License Agreement
of November 10th, 2022
PLEASE READ THIS END USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY BEFORE USING SOFTWARE FROM AUTERION. BY SIGNING OR ELECTRONICALLY ACCEPTING THIS EULA OR ANY ORDER FORM, AGREEMENT OR OTHER DOCUMENT REFERENCING THIS EULA (EACH, A “CUSTOMER AGREEMENT”), OR BY ACTIVATING A LICENSE KEY FOR OR USING AUTERION SOFTWARE, YOU SIGNIFY YOUR ACCEPTANCE OF THIS EULA AND ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE TERMS. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, THEN YOU MUST NOT USE THE AUTERION SOFTWARE.
This EULA governs the use of any version of Auterion Software (“Software”)), and any related updates, source code, appearance, structure and organization (together, the “Auterion Operating System”), regardless of the delivery mechanism.
1. License Grants and Use Rights
Subject to the terms of this EULA, the Auterion entity listed in the Customer Agreement and if no entity is listed in the Customer Agreement or any agreement between you and Auterion, Auterion Inc., a Delaware corporation (“Auterion”), grants to you:
(a) a perpetual, non-transferable, non-exclusive, worldwide, non-sublicensable, limited license to use the Software (as defined herein) solely in connection with the hardware on which the Software or certain of its components is originally installed and solely for your internal business purposes (the “Software License”);
(b) a non-transferable, non-exclusive, worldwide, non-sublicensable, limited license to use the documentation for the licensed Software (the “Documentation”) solely for your internal business purposes in connection with your use of the Software (the “Documentation License”).
in each case as purchased from Auterion or an authorized Auterion reseller or granted under agreed conditions in the Customer Agreement or as a development license. The Software License, and the Documentation License are revocable by Auterion under the conditions set forth in this EULA.
2. Third-Party Materials
The Software License and right to use pertain solely to your use of the Software and are not intended to limit your rights under, or grant you rights that supersede, the license terms of any software that may be made available with the Software that is subject to an open-source software license or a license from a third-party. The license terms for open-source software or third-party software that may be provided in connection with the Software are provided with the Documentation.
3. Evaluation Licenses and Use Rights
In the event you obtain the license to use the Software through an evaluation license without having purchased a license to use the Software for a license fee under the terms of a Customer agreement with Auterion or an authorized reseller, all use of the Software shall be limited to testing purposes and not for production use (“Evaluation”). Unless otherwise agreed by Auterion in writing, Evaluation of the Software shall be limited to an evaluation environment and the Software shall not be used in the operation of your business or any other non-evaluation purpose. Unless otherwise agreed by Auterion in writing, you shall limit all Evaluation use to a single evaluation term as set forth in the applicable Customer Agreement and shall not download or otherwise obtain additional copies of the Software for Evaluation.
4. Reserved Rights
You acquire a limited perpetual license and right to use, as applicable, the Software and the Documentation but no rights of ownership. Auterion reserves all rights to the Software not expressly granted to you. Title to the Software each component, copy and modification, including all improvements and derivative works, whether made by Auterion, you or others on Auterion’s behalf, including those made at your suggestion and all associated intellectual property rights, are and shall remain the sole and exclusive property of Auterion and/or its licensors.
5. Customer Data
You will own all right, title and interest in and to non-public data you provided to Auterion (or received by Auterion through your interaction with the Software to enable the maintenance of the Software (“Customer Data”). You irrevocably grant all such rights and permissions in or relating to Customer Data: (a) to Auterion, its contractors and its and their employees as are necessary or useful to perform their obligations or exercise their rights under the EULA, or as otherwise permitted under the EULA; and (b) to Auterion, as are necessary or useful to enforce the EULA. In addition you hereby grant Auterion the right to: (i) use Customer Data to compile statistical and other information related to the performance, operation and use of the Software and (ii) use, copy and analyze data produced from any or all of your access to and use of the Services and/or Auterion’s provision of the Services in aggregated, de-identified form for security and operations management, to create statistical analyses, to improve Auterion’s services, software, technology or processes, for research and development purposes, and in order to improve and to train Auterion’s artificial intelligence and machine learning capabilities. For the avoidance of doubt, such aggregated data will not allow for the identification of any individual.
You shall use the Software only in strict accordance with the instructions and warnings in the Documentation and in accordance with all Auterion policies relating to the Software (“Policies”) communicated to you and your failure to do so shall be a violation of this EULA. You shall not use the Software for any purposes beyond the scope of Software License granted in this EULA. In particular, the Software License does not authorize you (nor may you allow any third-party) to: (a) copy, distribute, reproduce, use or allow third-party access to the Software; (b) decompile, disassemble, reverse engineer, translate, modify, convert or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, including the source code or source listings or any trade secret information or process contained in the Software (except as permitted under applicable law); (c) execute or incorporate other software (except for approved software as appears in the documentation for the Software or specifically approved by Auterion in writing) into the Software, or create a derivative work of any part of the Software; (d) remove any trademarks, trade names or titles, copyright notices or any other proprietary marking on the Software; (e) disclose the results of any benchmarking of the Software (whether or not obtained with Auterion’s assistance) to any third-party; (f) attempt to circumvent any user limits or other license, copy protection mechanism or use restrictions that are built into, defined or agreed upon, regarding the Software.
7. Your User Responsibilities
You are responsible for obtaining and maintaining any and all equipment, including the airframe and any ground station hardware, to use the Software (“Equipment”) and for maintaining security of such Equipment and related passwords and any tokens or other items to enable authorized access. You must not allow unauthorized individuals to gain access to such items and must immediately notify Auterion of any unauthorized use of such items or any other breach of security related to, the Software, or your Equipment. You are responsible and liable for all uses of the Software and the Documentation, whether such use is permitted by or in violation of this EULA. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of individual users who gain access to the Software via your Equipment, and any act or omission by such user that would constitute a breach of this EULA if taken by you will be deemed a breach of this EULA by you. You shall use reasonable efforts to make all users to whom you permit use of the Software aware of the provisions of this EULA as applicable to their use of the Software and of the Documentation and the Policies and shall cause such users to comply with the provisions thereof.
8. Monitoring and Suspension
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 that is prohibited under Section 6. Although Auterion has no obligation to monitor your use of the Software, Auterion may do so. Notwithstanding anything to the contrary in this EULA, Auterion may temporarily suspend your use or access to any component or all of the Software if: (i) Auterion reasonably determines that (a) there is a threat or attack on Auterion’s intellectual property in connection with your use, (b) your use of the Software disrupts or poses a security risk to the Software or the intellectual property rights of Auterion or to any other customer or vendor of Auterion, (c) you are using the Software for fraudulent or illegal activities or in violation of the terms of the license granted herein, (d) Auterion’s provision of Software to you is prohibited by applicable law; (ii) any vendor of Auterion has suspended or terminated Auterion’s access to or use of any third-party services or products required to enable you to use the Software; or (iii) if you are delinquent in the payment of amounts due pursuant to the Customer Agreement and if such delinquency exceeds the grace period (if any) in the Customer Agreement (each of the foregoing, a “Suspension”). Auterion will use commercially reasonable efforts to provide written notice of any Suspension to you and to provide updates regarding resumption of use or access following any Suspension. Auterion will use commercially reasonable efforts to resume providing use of the Software as soon as reasonably possible after the event giving rise to the Suspension is cured. Auterion will have no liability for any damage, liabilities, losses (including any loss of data, use, or profits), or any other consequences that you may incur as a result of a Suspension.
The Software License hereunder includes basic software maintenance for a period of 24 months from activation of the Software, provided you comply with the terms of this EULA. Maintenance and support will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Auterion makes generally available to all licensees of the Software then entitled to maintenance services. Auterion may develop and provide Updates in its sole discretion, and you agree that Auterion has no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this EULA. Maintenance does not include any new version or new release of the Software that Auterion may issue as a separate or new product, and Auterion may determine whether any issuance qualifies as a new version, new release, or Update at its sole discretion. Auterion will stop providing maintenance for versions of the Software 12 months after the release of a new version of the Software. Auterion has no obligation to provide maintenance, including Updates for any but the most current version or release of the Software; for any copy of Software for which all previously issued Updates have not been installed; if you are in breach under this EULA; or for any Software that has been modified other than by or with the authorization of Auterion, that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Auterion in writing; or any Software that is made available under an Evaluation license.
10. Limited Warranty
Auterion represents and warrants that (a) for a period of thirty (30) days after delivery to you, the Software will substantially function as designed; and (b) to Auterion’s knowledge, at the time of delivery, the Software will not include malicious mechanisms or code for the purpose of damaging or corrupting the Software. The aforementioned warranty will not apply and be null and void if you materially breach a provision of this EULA, or if you or any user whom you permit to use the Software, whether or not in violation of this EULA: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or authorized by Auterion in writing; (ii) modifies or damages the Software, or the media on which the Software is provided, including abnormal physical or electrical stress; or (iii) misuses the Software including any use other than as specified in the Documentation or explicitly authorized in writing by Auterion.
11. WARRANTY LIMITATIONS
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10, THE SOFTWARE AND ANY DOCUMENTATION DELIVERED THEREWITH AND THEIR RESPECTIVE COMPONENTS ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AUTERION, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, DISTRIBUTORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION AND COMPONENTS, 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 OF THE FOREGOING, AUTERION PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE 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. IF THE SOFTWARE IS MADE AVAILABLE TO YOU UNDER AN EVALUATION LICENSE OR A DEVELOPMENT LICENSE THEY ARE PROVIDED “AS IS” AND AUTERION MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SOFTWARE.
Your only remedy, and Auterion’s sole obligation in case the Software does not conform to the limited warranty in Section 11, is for Auterion to make such efforts as it deems commercially reasonable to modify or adapt the Software or the affected component to make it or them function as designed, and if Auterion is unable to do so despite diligent efforts, or if Auterion decides, in its discretion, that the cost or effort required to do so is not commercially reasonable, Auterion may terminate the Software License and use right.
13. EXCLUSION OF DAMAGES
IN NO EVENT WILL AUTERION OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, OR ANY RESELLER, BE LIABLE TO YOU 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 EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AUTERION OR ANY RESELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Limitation of Liability
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF AUTERION AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS, UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO AUTERION PURSUANT TO THIS EULA FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM.
15. Term and Termination
The term of the License and/or use right is perpetual (the “Term”) notwithstanding this, the License and use right are revocable at any time by Auterion effective upon written or electronic notice to you. Auterion also may terminate this EULA, effective on written or electronic notice to you, if you breach any of the provisions of Sections 5, 6, 7, or 8. Either Party may terminate this EULA, effective on written notice to the other Party, if the other Party materially breaches this EULA, and such breach is incapable of cure or, being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach. Upon termination of this EULA, the use right and the Documentation License will end with immediate effect. You must immediately discontinue the use of the Software, and the Software License. Auterion may take technological measures to terminate your use of the Software.
16. Export Control
You represent and warrant that you: (a) understand that the Software, the Documentation, and their components may be subject to export controls under U.S. and foreign laws, including the U.S. Commerce Department’s Export Administration Regulations (“EAR”); (b) are not located in a prohibited destination country under export control or sanctions regulations; (c) will not export, re-export, or transfer the Software to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s); (d) will not use or transfer the Software, the Documentation, or any of their components for use in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by applicable law, such as an arms embargo, unless authorized by the relevant government agency by regulation or specific license; (e) understand and agree that if you are in the United States and export or transfer the Software, the Documentation, or any of their components to eligible end users, you will, to the extent required by EAR Section 740.17(e), submit semi-annual reports to the Commerce Department’s Bureau of Industry and Security, which include the name and address (including country) of each transferee; and (f) understand that countries including the United States may restrict the import, use, or export of encryption products (which may include the Software or the components) and agree that you shall be solely responsible for compliance with any such import, use, or export restrictions.
17. U.S. Government Rights
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are a part of the U.S. government or any contractor therefor, you shall receive only those rights with respect to the Software, and the Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(a) All matters arising out of or relating to this EULA shall be governed and construed in accordance with the internal laws of the State of California 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 EULA or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of Ventura, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Each of you and Auterion hereby irrevocably waive your right to a jury trial. You acknowledge and agree that your breach or threatened breach of any of your obligations under Section 5 would cause Auterion irreparable harm for which monetary damages would not be an adequate remedy and agree Auterion will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are in addition to all other remedies that may be available.
(b) Except for the documents and instruments specifically referenced herein, this EULA constitutes the entire agreement between you and Auterion regarding its subject matter and supersedes all proposals, negotiations, conversations, discussions, agreements or representations, whether oral or written, including any industry custom or past dealing, between the parties relating to the subject matter and they shall be of no further effect or evidentiary value. This EULA 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 EULA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EULA 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.
(c) You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Auterion’s prior written consent, which consent Auterion may give or withhold in its sole discretion. No delegation or other transfer will relieve you of any of your obligations or performance under this EULA. Any purported assignment, delegation, or transfer in violation of this Section 13 (c) is void. Auterion 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 EULA without your consent. This EULA is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(d) Auterion will not be responsible or liable to you, 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, pandemic, or other viral outbreaks, 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 your equipment, loss and destruction of property, or any other circumstances or causes beyond Auterion’s reasonable control.
(e) If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.