BrainOS End User License Agreement

   
BASIC BRAINOS® SDK END USER LICENSE AGREEMENT

 
 

1. INTRODUCTION
 
1.1 The Basic BrainOS® Software Development Kit (referred to in this Basic BrainOS® SDK End User License Agreement as the “SDK” comprising the system files, libraries, packaged APIs, and API add-ons of the Basic form of BrainOS® software which provides a learning system and development framework that links perception, navigation, and manipulation into a complete robotic control system) is licensed and not sold to you solely for use subject to the terms of this Basic BrainOS® SDK End User License Agreement (the “License Agreement”). This License Agreement forms a legally binding contract between you and Brain Corporation, a California corporation (“Brain”) in relation to your use of the SDK.
 
1.2 SOFTWARE LICENSE AGREEMENT. IMPORTANT – READ CAREFULLY: YOUR ELECTRONIC ACKNOWLEDGEMENT AND/OR YOUR ACTUAL USE OF THE SDK AND/OR ANY RELATED ITEMS AND DOCUMENTATION LICENSED HEREUNDER IS SUBJECT TO THE LICENSE TERMS SET FORTH BELOW AND INDICATES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR, LIMITATIONS ON ACCESS, USE, TRANSFERABILITY, WARRANTY AND LIABILITY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IN ADDITION, BY ELECTRONICALLY ACCEPTING THIS AGREEMENT OR THROUGH YOUR ACTUAL USE OF THE SDK, YOU CERTIFY THAT YOU HAVE THE AUTHORITY TO BIND YOURSELF TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SDK OR EXERCISE ANY OF THE RIGHTS GRANTED HEREUNDER. THUS, IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT COPY, DOWNLOAD, ACCESS AND/OR USE THE SDK.

 
 

2. ACCEPTING THIS LICENSE AGREEMENT
 
2.1 In order to use the SDK, you must first agree to this License Agreement. You may not use the SDK if you do not accept this License Agreement.
 
2.2 By using the SDK, you hereby agree to the terms of this License Agreement.
 
2.3 You may not use the SDK and may not accept the License Agreement if you are a person barred from receiving the SDK under the laws of the United States or other countries including the country in which you are resident or from which you use the SDK.
 
2.4 If you are agreeing to be bound by this License Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this License Agreement. If you do not have the requisite authority, you may not accept the License Agreement or use the SDK on behalf of your employer or other entity.

 
 

3. ACCESSING THE SDK
 
You may access and obtain the SDK for Use pursuant to this License Agreement solely from Brain or an authorized distributor of Brain by downloading the SDK from Brain’s web-site at [——–] or purchasing hardware pre-loaded with the SDK from Brain or an authorized distributor of Brain. You acknowledge that notwithstanding your purchase of any hardware pre-loaded with the SDK or any portion thereof, the SDK is licensed and not sold to you solely for use subject to the terms of this License Agreement.

 
 

4. SDK LICENSE FROM BRAIN
 
4.1 Subject to the terms of this License Agreement, Brain grants you a limited, worldwide, royalty-free, non-sublicensable, non-transferable, non-assignable and non-exclusive license solely to Use the SDK for non-commercial internal development and evaluation purposes. “Use” as used herein shall mean the ability to access, run, execute and display a single copy of the SDK in its object code form. All rights not specifically granted under this License Agreement are reserved by Brain and, as applicable, Brain’s licensors. THE SDK IS LICENSED, NOT SOLD. YOU ARE PERMITTED TO DOWNLOAD, INSTALL AND/OR USE THE SDK ONLY IN ACCORDANCE WITH THE TERMS OF THIS LICENSE AGREEMENT. Your license confers no title or ownership in the SDK and should not be construed as a sale of any rights in the SDK. This License Agreement shall also apply to any patches or updates you may obtain for the SDK.
 
4.2 You agree and acknowledge that Brain, Brain’s affiliates and Brain’s licensors own all legal right, title and interest in and to the SDK (including but not limited to any patches and updates to the SDK and any and all copies thereof), including any Intellectual Property Rights that subsist in the SDK. “Intellectual Property Rights” means any and all rights under patent law, copyright law, moral rights, trade secret law, trademark law, and any and all other proprietary rights. Brain reserves all rights not expressly granted to you. The SDK is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws.
 
4.3 You may not use the SDK for any purpose not expressly permitted by this License Agreement. Except to the extent required by applicable third party licenses with respect to portions of the SDK licensed to Brain by third parties, you may not: (a) copy (except for reasonable backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK; or (b) sell, rent, lease, license, distribute or otherwise transfer, commercialize, or offer or provide a service with, any software or device incorporating the SDK or any part of the SDK.
 
4.4 Use, reproduction and distribution of components of the SDK which are licensed by Brain under an open source software license are governed solely by the terms of that open source software license and not this License Agreement.
 
4.5 You agree that the form and nature of the SDK that Brain provides may change without prior notice to you and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK. You agree that Brain may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to you or to users generally at Brain’s sole discretion, without prior notice to you.
 
4.6 Nothing in this License Agreement gives you a right to use any of Brain’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
 
4.7 You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.
 

 
 

5. USE OF SDK BY YOU
 
5.1 You agree to use the SDK and write applications only for purposes that are permitted by (a) this License Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
 
5.2 You agree that you will not engage in any activity with the SDK, including the use, development or distribution of an application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of Brain or any third party.
 
5.3 You agree that you are solely responsible for (and that Brain has no responsibility to you or to any third party for) any data, content, or resources that you create, and for the consequences of your actions (including any loss or damage which Brain may suffer) by doing so.
 
5.4 You agree that you are solely responsible for (and that Brain has no responsibility to you or to any third party for) any breach of your obligations under this License Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Brain or any third party may suffer) of any such breach.
 
5.5 Audits and Monitoring. You acknowledge that Brain reserves the right, at any time and without notice, to monitor compliance with the terms of this License Agreement and to otherwise protect its rights in the SDK by incorporating license management technology into the SDK and monitoring usage, including, without limitation, time, date, access or other controls, counters, serial numbers, and/or other security devices. The SDK may also include product activation and other security technology that is designed to prevent the unauthorized access, use and/or copying of the SDK, including any violations of this License Agreement. This technology may cause Your device to connect to the Internet and transmit information relevant to your compliance with the terms of this License Agreement to Brain, and may prevent uses of the SDK that are not authorized or permitted pursuant to the terms of this License Agreement. Brain reserves the right, with reasonable notice, to audit or have audited your use of the SDK to verify compliance with the terms of this License Agreement. Such audit shall be at Brain’s expense unless noncompliance by you is found by the auditor, in which case, you shall reimburse Brain for the reasonable costs of the audit in addition to payment of all fees necessary to obtain valid licenses to bring your use back into compliance.

 
 

6. PRIVACY AND INFORMATION
 
6.1 In order to continually innovate and improve the SDK, Brain may collect certain usage statistics from the software including but not limited to a unique identifier, associated IP address, version number of the software, and information on which tools and/or services in the SDK are being used and how they are being used. Before any of this information is collected, the SDK will notify you and seek your consent. If you withhold consent, the information will not be collected.
 
6.2 The data collected is examined in the aggregate to improve the SDK and is maintained in accordance with Brain’s Privacy Policy (a current copy of Brain’s Privacy Policy may be reviewed on Brain’s web-site at http://www.braincorporation.com).

 
 

7. THIRD PARTY APPLICATIONS
 
7.1 If you use the SDK to run applications developed by a third party or that access data, content or resources provided by a third party, you agree that Brain is not responsible for those applications, data, content, or resources. You understand that all data, content or resources which you may access through such third party applications are the sole responsibility of the person from which they originated and that Brain is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party applications, data, content, or resources.
 
7.2 You should be aware the data, content, and resources presented to you through such a third party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on these third party data, content, or resources (either in whole or in part) unless you have been specifically given permission to do so by the relevant owners.
 
7.3 You acknowledge that your use of such third party applications, data, content, or resources may be subject to separate terms between you and the relevant third party. In that case, this License Agreement does not affect your legal relationship with these third parties.

 
 

8. ACCESSING ENHANCED BRAINOS OR USING APIS
 
8.1. You acknowledge and agree that access to or Use of the Enhanced BrainOS software and software development kit or any components thereof which are not part of the SDK are not licensed under this License Agreement and such access or Use will require your agreement to an additional license agreement with Brain.
 
8.2 If you use any API to retrieve data from Brain, you acknowledge that the data may be protected by intellectual property rights which are owned by Brain or those parties that provide the data (or by other persons or companies on their behalf). Your use of any such API may be subject to additional Terms of Service. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this data (either in whole or in part) unless allowed by the relevant Terms of Service.
 
8.3 If you use any API to retrieve a user’s data from Brain, you acknowledge and agree that you shall retrieve data only with the user’s explicit consent and only when, and for the limited purposes for which, the user has given you permission to do so.

 
 

9. TERMINATING THIS LICENSE AGREEMENT
 
9.1 This License Agreement will continue to apply until terminated by either you or Brain as set out below.
 
9.2 If you want to terminate this License Agreement, you may do so by ceasing your use of the SDK.
 
9.3 Brain may at any time, terminate this License Agreement with you if: (A) you have breached any provision of this License Agreement; or (B) Brain is required to do so by law; or (C) the partner with whom Brain offered certain parts of SDK (such as APIs) to you has terminated its relationship with Brain or ceased to offer certain parts of the SDK to you; or (D) Brain decides to no longer provide the SDK or certain parts of the SDK to users in the country in which you are resident or from which you use the service, or the provision of the SDK or certain SDK services to you by Brain is, in Brain’s sole discretion, no longer commercially viable.
 
9.4 In the event that you make any use of the SDK not expressly permitted by this License Agreement, your license rights under this License Agreement shall immediately and automatically terminate.
 
9.5 When this License Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Brain have benefited from, been subject to (or which have accrued over time whilst this License Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 15.6 shall continue to apply to such rights, obligations and liabilities indefinitely.

 
 

10. DISCLAIMER OF WARRANTIES
 
10.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SDK IS AT YOUR SOLE RISK AND THAT THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM BRAIN.
 
10.2 YOUR USE OF THE SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
 
10.3 BRAIN FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 
 

11. LIMITATION OF LIABILITY
 
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BRAIN, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT BRAIN OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

 
 

12. INDEMNIFICATION
 
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Brain, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) your use of the SDK, (b) any application you develop on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by you with this License Agreement.

 
 

13. CHANGES TO THE LICENSE AGREEMENT
 
Brain may make changes to the License Agreement as it distributes new versions of the SDK. When these changes are made, Brain will make a new version of the License Agreement available on the website where the SDK is made available.

 
 

14. GENERAL LEGAL TERMS
 
14.1 This License Agreement constitutes the whole legal agreement between you and Brain and governs your use of the SDK (excluding any services which Brain may provide to you under a separate written agreement), and completely replaces any prior agreements between you and Brain in relation to the SDK.
 
14.2 You agree that if Brain does not exercise or enforce any legal right or remedy which is contained in this License Agreement (or which Brain has the benefit of under any applicable law), this will not be taken to be a formal waiver of Brain’s rights and that those rights or remedies will still be available to Brain.
 
14.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this License Agreement is invalid, then that provision will be removed from this License Agreement without affecting the rest of this License Agreement. The remaining provisions of this License Agreement will continue to be valid and enforceable.
 
14.4 EXPORT RESTRICTIONS. THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE.
 
14.5 U.S. GOVERNMENT RESTRICTED RIGHTS. The SDK and documentation have been developed entirely at private expense and are provided as “Commercial Computer Software” or “restricted computer software.” Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(l)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(l) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is Brain Corporation. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; and (iii) you are not on the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Additionally, you represent and warrant that you will not use the SDK for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
 
14.6 The rights granted in this License Agreement may not be assigned or transferred by you without the prior written approval of Brain. You shall not be permitted to delegate your responsibilities or obligations under this License Agreement to any third party without the prior written approval of Brain.
 
14.7 This License Agreement, and your relationship with Brain under this License Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Brain agree to submit to the exclusive jurisdiction of the courts located within the county of San Diego, California to resolve any legal matter arising from this License Agreement. Notwithstanding this, you agree that Brain shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.