HYPERVSN SDK COMMERCIAL USE LICENSE AGREEMENT
Thank you for your interest in Kino-mo Ltd, trading as HYPERVSN (“Kino-mo”), its fully integrated 3D holographic display systems, powered by hardware, proprietary software and the tools enabling 3D content creation (“HYPERVSN Product(s)”), and related software development kit, provided to you directly in the applicable HYPERVSN SDK download, and any upgrades, modified versions, additions, and improvements therefor, if any, (collectively, “HYPERVSN SDK”) designed to enable development of any software that interoperates with HYPERVSN Product(s).
This HYPERVSN SDK License Agreement (the “Agreement”) is between you and the entity that you represent (“you” or the “Licensee”) and Kino-mo.
By paying the relevant invoice (clause 3.1 below), which includes a reference to this Agreement, you agree that you have read, understood, and agree to be bound by the Agreement. If you are using HYPERVSN SDK on behalf of an entity, you represent and warrant that you have full legal authority to bind that entity to this Agreement, and by paying the relevant invoice (clause 3.1 below), you are doing so on behalf of that entity, and all references to you or your in the Agreement refer to that entity.
Accordingly, you and Kino-mo acknowledge and agree as follows:
1. DEFINITIONS
“Affiliate” means with respect to any individual, corporation, limited liability company or other entity (a “Person”): (a) another Person who directly or indirectly controls or is controlled by or is under common control with the first Person; and/or (b) another Person who owns or controls more than fifty percent (50.0%) or more of the outstanding voting securities or capital stock of the first Person.
“End User” means any third party who owns and ultimately uses HYPERVSN single LED-based device(s) and has acquired a license/purchased the Licensee’s Product.
“HYPERVSN CMS” means HYPERVSN cloud content management system operated by Kino-mo and available at https://cms.hypervsn.com/login.
“HYPERVSN Product” means a fully integrated 3D holographic display system, powered by hardware, proprietary software and the tools enabling 3D Content creation.
“HYPERVSN SDK” means a software development kit, provided to the Licensee directly in the applicable HYPERVSN SDK download, including any upgrades, modified versions, additions, and improvements therefor, if any, designed to enable development of any software that interoperates with HYPERVSN Products.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights.
“License Fee” has the meaning set in Clause 3.1 of this Agreement.
“Licensee’s Product” means a software developed by the Licensee that interoperates with HYPERVSN Product.
“Territory” means the territory of the world.
2. YOUR USE RIGHTS
2.1. Subject to your compliance with all the terms set forth in this Agreement, including without limitation, the payment of the License Fee, Kino-mo grants you a non-exclusive, revocable and sub-licensable right and license to use HYPERVSN SDK solely for the purpose of use, publishing, sale or other distribution of the Licensee’s Product in the Territory during the lifetime of the Licensee’s Product.
2.2. You agree to use HYPERVSN SDK and Licensee’s Product as permitted by (a) this 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 European Union or other relevant countries). HYPERVSN SDK shall not be used for development of any software or other product which might be deemed by Kino-mo to violate legislation or be illegal.
2.3. You agree that you are responsible for maintaining the confidentiality of any credentials or access keys that may be issued to you by Kino-mo or which you may choose on your own to access and enable use of HYPERVSN SDK. All such access keys and or credentials may not be shared with third parties.
2.4. You may sub-license your rights granted under Clause 2.1 of this Agreement, to your affiliates and service providers who have a need to do so in connection with their provision of outsourced services to you, provided always that you remain fully liable for any breach of the terms of this Agreement by them.
3. FINANCIAL PROVISIONS
3.1. In consideration of the grant of rights under this Agreement you shall pay to Kino-mo a one-time fee of USD 200 (the “License Fee”) according to the invoice issued by Kino-mo.
3.2. All amounts payable to Kino-mo under this Agreement are to be paid free and clear of (and without deduction or withholding for, unless such deduction or withholding is explicitly allowed by this Agreement) any tax (including withholding, sales, use, value added and/or any other tax), duties, bank charges, currency control restrictions, commissions and/or other withholdings whatsoever and you shall be solely responsible for any such tax, duties, bank charges, currency control restrictions, commissions and/or other withholdings. To the extent that you make, pay, deduct and/or withhold any such tax, duties, bank charges, currency control restrictions, commissions and/or other withholdings (or is required to do the same), you shall pay to Kino-mo such additional amount as will ensure that Kino-mo receives the same total amount that it would have received if no such withholding or deduction had been required.
3.3. All amounts payable to Kino-mo under this Agreement shall be transferred by telegraphic (or other similar) transfer to the Kino-mo’s bank account in the US dollars, unless otherwise is specified in the invoice issued by Kino-mo. The date of payment is the date of factual placement of funds to the Kino-mo bank account.
3.4. You shall perform the payment obligations without any right to invoke set-off, counterclaims, deductions, withholdings or other similar rights.
4. CONDITIONS ON USE
4.1. As conditions on your use rights, you shall not directly or indirectly (or assist or allow third party to):
(a) use HYPERVSN SDK except for the purposes of developing the Licensee’s Product and its further use and distribution;
(b) use HYPERVSN SDK to create or facilitate the creation of a network that is same, similar to or competitive with HYPERVSN CMS as available at https://cms.hypervsn.com/login;
(c) use HYPERVSN SDK to develop another SDK;
(d) remove or obscure any feature of HYPERVSN SDK, including without limitation any proprietary rights notices (including copyright and trademark notices), security, or access control mechanism;
(e) interfere with, disrupt, or access in an unauthorized manner the servers, networks, or other properties or services of Kino-mo or any third party via engaging in activities with HYPERVSN SDK;
(f) contest, impair, or dilute (or assist any third party in doing so) any of Kino-mo’s rights, title or interests in or to HYPERVSN SDK, any HYPERVSN Product or intellectual property rights in the same;
(g) challenge or attack any Kino-mo’s intellectual property rights in any part of HYPERVSN SDK or any HYPERVSN Product; or
(h) patent anything created or derived from HYPERVSN SDK or HYPERVSN SDK itself, unless otherwise is agreed between you and Kino-mo.
4.2. You agree that the form and nature of HYPERVSN SDK that Kino-mo provides may change without prior notice to you and that future versions of HYPERVSN SDK might have become incompatible with the Licensee’s Product developed on previous versions of HYPERVSN SDK. You agree that Kino-mo might have to stop (permanently or temporarily) providing HYPERVSN SDK (or any features within HYPERVSN SDK) to third parties generally at Kino-mo’s discretion.
5. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
5.1. Kino-mo, its affiliates and their licensors retain sole and exclusive right, title and interest in HYPERVSN SDK and all intellectual property rights in the same. Nothing in this Agreement shall be construed and deemed as an assignment or transfer to you of any ownership, title, or interest in HYPERVSN SDK. Kino-mo reserves all rights not expressly granted to you under this Agreement.
5.2. You retain sole and exclusive right, title and interest in the Licensee’s Product and all intellectual property rights in the same.
5.3. You may, from time to time, voluntarily elect to provide suggestions, comments and other feedback (“Feedback”) to Kino-mo with respect to HYPERVSN SDK. Kino-mo may, in connection with any of its products, services, specifications or technologies, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation or restriction based on intellectual property rights or otherwise. You shall not provide any Feedback subject to any terms that would impose any obligation on Kino-mo.
5.4. Nothing in this Agreement shall be deemed to preclude Kino-mo or its affiliates from entering into agreements with or otherwise engaging other developers who may develop a product similar to or competing with the Licensee’s Product.
6. THIRD PARTY SOFTWARE
6.1. HYPERVSN SDK may include third party software as described in HYPERVSN SDK download. By integrating HYPERVSN SDK without disabling or removing this third party software, you acknowledge and agree that the applicable terms of third party license agreements apply to such integration and use of third party software.
6.2. Use, reproduction and distribution of components of HYPERVSN SDK licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement. You, as well as Kino-mo did, agree to remain a licensee in good standing in regard to such open source software licenses under all the rights granted and to refrain from any actions that may terminate, suspend, or breach such rights.
7. TERM AND TERMINATION
7.1. This Agreement shall commence on the date of payment (clause 3.3) (“Effective Date”) and shall continue in full force and effect for the duration of the lifetime of the Licensee’s Product, unless terminated by any of the Parties as set out below.
7.2. You may terminate this Agreement without cause at any time by (a) ceasing any use of HYPERVSN SDK and (b) sending to Kino-mo a written notice of such cessation.
7.3. Kino-mo may terminate this Agreement at any time if:
7.3.1. you have breached any provision of this Agreement;
7.3.2. if any amount payable by you under this Agreement is in arrears (provided that Kino-mo has given you notice that the relevant amount has not been received and the relevant amount continues to be in arrears 14 days after you receive such notice); and/or
7.3.3. Kino-mo is required to do so by law.
7.4. Either party will have the right to immediately terminate this Agreement if the other party becomes insolvent, makes an assignment for the benefit of creditors, declares bankruptcy or is dissolved or otherwise ceases to exist for any reason whatsoever.
7.5. Following any termination of this Agreement, you shall immediately cease any use of HYPERVSN SDK and destroy all copies, as well as cease licensing, publishing, sale and other distribution of the Licensee’s Product. Clauses 4 – 9 shall survive any termination of this Agreement.
8. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
8.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF HYPERVSN SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF HYPERVSN SDK IS AT YOUR SOLE RISK AND THAT HYPERVSN SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM KINO-MO. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT HYPERVSN SDK MAY CONTAIN ERRORS, DEFECTS AND SECURITY VULNERABILITIES THAT CAN RESULT IN SIGNIFICANT DAMAGE, INCLUDING THE COMPLETE, IRRECOVERABLE LOSS OF USE OF YOUR COMPUTER SYSTEM OR OTHER DEVICE.
8.2. KINO-MO 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.
8.3. YOU EXPRESSLY UNDERSTAND AND AGREE THAT KINO-MO, ITS 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 KINO-MO HAS BEEN ADVISED OF OR SHOULD HAS BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. 8.4. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS AND EXCLUSIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9. INDEMNIFICATION
9.1. To the maximum extent permitted by law, you agree to indemnify Kino-mo, its affiliates, and their officers, directors and employees from and against any and all losses, liabilities, claims and causes of action, including attorneys’ fees, arising out of or in connection with (a) the Licensee’s Product, (b) your use or misuse of HYPERVSN SDK, or (c) violation of this Agreement, any applicable law or regulation by you.
9.2. To the maximum extent permitted by law, Kino-mo agrees to indemnify you, your affiliates, and their officers, directors and employees from and against any and all losses, liabilities, claims and causes of action, including attorneys’ fees, arising out of or in connection with Kino-mo’s breach which would amount to a material breach of any Kino-mo’s obligations.
10. GENERAL TERMS
10.1. This Agreement constitutes the entire legal agreement between you and Kino-mo and governs your use of HYPERVSN SDK, and completely replaces any prior agreements between the parties in relation to HYPERVSN SDK. This Agreement shall prevail over the terms and conditions of the license agreement accepted by the Licensee when downloading HYPERVSN SDK from HYPERVSN CMS (as the case may be). Kino-mo may modify this Agreement from time to time. Kino-mo shall use reasonable efforts to notify you of modifications. You may be required to click through the modified Agreement to show your acceptance and in any event your continued use of HYPERVSN SDK after the modification constitutes your acceptance to the modifications. If you do not agree to the modified Agreement, your sole remedy is to terminate your use of HYPERVSN SDK as described in Clause 5 of this Agreement.
10.2. All information disclosed by Kino-mo that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of HYPERVSN SDK. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Kino-mo or anyone else. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide Kino-mo with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Kino-mo’s cost, if Kino-mo wishes to contest the disclosure. You should not provide to Kino-mo any information that you consider confidential and you agree that Kino-mo is not subject to any confidentiality obligations or use restrictions related to information that you may provide to Kino-mo in relation to this Agreement.
10.3. No failure or delay by a party to exercise any right under this Agreement or at law shall be a waiver of that right. If any part of this Agreement is found to be invalid or unenforceable, that shall not affect the rest of this Agreement. This Agreement does not create any exclusive relationship between the parties nor any partnership, joint venture, employment or agency between them. Only a party, indemnified persons and the parties’ affiliates to this Agreement can enforce it.
10.4. Kino-mo may assign, novate, sub-license, transfer, sub-contract, charge or otherwise deal with this Agreement or any rights under it without your prior written consent. You acknowledge that Kino-mo shall have control over any use of HYPERVSN SDK. You, therefore, agree not to assign, novate, sub-license, transfer, sub-contract, charge or deal in any other manner with this Agreement or any rights under it without the prior written consent of Kino-mo on such conditions that Kino-mo may specify (without which any such purported steps will confer no rights).
10.5. This Agreement and any dispute or claim in connection with it will be governed by the law of England and Wales without regard to its conflict of law provisions. The parties agree that the courts of England and Wales will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
10.6. The official language of this Agreement is English. In the event of any discrepancies between the English language version and any translation, the English language version shall prevail.
