Application Software End User License Agreement

1  Applicability and Order of Precedence 

This End User License Agreement ("EULA") is incorporated into and forms part of the standard Terms and Conditions of Sale of Additive Monitoring Inc. dba Phase3D ("Phase3D"), published at https://www.phase-3d.com/pages/terms-and-conditions-of-sale ("Terms and Conditions"), as amended from time to time in accordance with their terms, as applicable to the Customer and the applicable Order. This EULA governs specifically the licensing and use of Phase3D Application Software and related Documentation. "User," "you," and "your" mean the Customer identified in the applicable Order. "Agreement" means the complete agreement comprising the Terms and Conditions, the applicable Order and documents incorporated by reference, including this EULA. Phase3D and User are each a "Party" and together the "Parties." This EULA takes effect when incorporated into the Agreement (the "Effective Date"); the license commencement date and initial term are as specified in the applicable Order. 

The Terms and Conditions are the master commercial terms. This EULA supplements them with provisions specific to Application Software and does not replace them or create a separate agreement. If a conflict cannot be resolved by reading the documents together, the Terms and Conditions control, including as to warranties, limitations of liability and claim periods, Customer indemnification, confidentiality, termination of Orders, dispute resolution, governing law, payment, Hardware and Services. Software-specific provisions of this EULA apply to the extent consistent with the Terms and Conditions. The software renewal provisions in Section 11 and the Phase3D software infringement indemnity in Section 15 are express supplements; the latter is the express obligation stated in this EULA for purposes of the authorized-writing exception in Section 6.2 of the Terms and Conditions, and remains subject to Section 6 of those Terms and Conditions. An Order may identify the license type, commencement date, duration and fees but does not amend the Terms and Conditions merely by doing so. Any express departure from the Terms and Conditions must satisfy their applicable amendment requirements, identify the provision being changed and be limited to that stated departure. No provision of this EULA otherwise displaces the broader Terms and Conditions. 

2  Definitions 

Capitalized terms not otherwise defined in this EULA have the meanings given in the Terms and Conditions, including but not limited to Application Software, Documentation, Embedded Software, Hardware, Intellectual Property, Order, Phase3D Solution, Representatives, Services and Software. "Data" means Customer Data as defined in Section 8.1 of the Terms and Conditions, including information collected from the sensor used by the Hardware and Software. "Data License" means the license granted to Phase3D under Section 3 of this EULA and Section 8.2 of the Terms and Conditions. "Phase3D Confidential Information" has the meaning given in Section 9 of the Terms and Conditions, as supplemented by Section 8 of this EULA. 

3  Data Ownership and Data License 

As between User and Phase3D, User owns the Data. Section 8 of the Terms and Conditions governs Customer Data, the Data License, Usage Data and feedback, including User's privacy compliance, rights and required consents. 

User grants to Phase3D a non-exclusive, perpetual, irrevocable, transferable, fully sublicensable, royalty free and fully paid up worldwide right and license to use, reproduce, modify, make derivative works from, display, perform, distribute and transmit Data to: (i) provide the Software and Hardware to User (including monitoring and improving the same), (ii) train the Software and Hardware, including without limitation Phase3D’s algorithms and machine-learning models, (iii) develop new features, functionality, products or services, including to develop, create, extract, compile, synthesize and/or otherwise generate additional data or databases; and (iv) use for any other lawful purpose. User shall also provide Phase3D with all necessary access, cooperation, personnel, and support that may be reasonably required by Phase3D in accessing or retrieving a copy of the Data. 

Phase3D may collect usage data, meta data, performance data and other data related to how User uses and interacts with the Software and Hardware, including information verifying whether Data was successfully transmitted via the Software and Hardware (“Usage Data”). To the extent Phase3D collects or generates Usage Data, it will be owned by Phase3D, and Phase3D may use it for any lawful purpose. 

Any feedback or suggestions User provides regarding the Software and Hardware or Phase3D’s other products or services is voluntary. Phase3D is entitled to perpetually and irrevocably use, reproduce, license or otherwise distribute and commercialize any such feedback without any obligations or restrictions of any kind, including any Intellectual Property rights therein. 

The rights described in this Section are the same rights granted under Section 8 of the Terms and Conditions and do not create separate or inconsistent ownership rights or licenses. Usage Data has the meaning given in Section 8.3 of the Terms and Conditions. 

4  License Grant 

(a) Where the applicable Order is for a “Term License” to Application Software, the following license grant shall apply: Subject to the terms of this EULA, during the term of the Application Software license set forth in the applicable Order Phase3D grants User a limited, non-exclusive, non-transferable and non-sublicensable license within the United States to install and use the Application Software solely in connection with User’s use of the Hardware for its internal business purposes.  

(b) Where the applicable Order is for a “Perpetual License” to Application Software, the following license grant shall apply: Subject to the terms of this EULA, Phase3D grants to User a limited, non-exclusive, non-transferable and non-sublicensable perpetual license to install and use the Application Software solely in connection with User’s use of the Hardware for its internal business purposes. 

(c) User may permit Representatives to exercise its rights under the applicable license granted in this Section 4. Representatives will be required to abide by the terms of this EULA. User shall be liable for all acts and omissions of its Representatives, and any breach by a Representative shall be deemed a breach by User. 

5  License Restrictions 

Subject to the permissions and exceptions in Section 7.5 of the Terms and Conditions, including applicable-law and open-source licensing exceptions, and except as expressly authorized by Phase3D in writing, you shall not, and shall not permit, encourage or authorize third parties to: 

(a) copy or otherwise duplicate the Software or Hardware, except to the extent necessary to install and use the Application Software as expressly licensed under Section 4; 

(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, on the Software or Hardware; 

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code or interior components of the Software or Hardware; 

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software or Hardware, including any copy thereof; 

(e) make, keep or disseminate any oral or written information regarding the Software, Hardware or Intellectual Property beyond the Representatives; 

(f) rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, transfer, or share or otherwise make available the Software or Hardware, or any features or functionality thereof, or code comprising the same, to any third party, except for Representatives acting within the license granted to User and subject to Section 7.5 of the Terms and Conditions, for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time, or any Phase3D trademark, logo or likeness;  

(g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Software or Hardware; 

(h) use the Software or Hardware in any manner to provide service bureau, time-sharing or other computer services to third parties; or 

(i) use the Software or Hardware, or allow the transfer, transmission, export, or re-export of the Software or Hardware or portion thereof in violation of any export control laws or regulations administered by any government agency. 

These restrictions supplement Section 7.5 of the Terms and Conditions and do not authorize use outside the applicable license or the intended use of the Phase3D Solution. 

6  License Grant for Documentation 

License Grant for Documentation. Subject to the terms of this EULA, during the term of the Application Software license set forth in the applicable Order, Phase3D grants to User a limited, non-exclusive, non-transferable and non-sublicensable license within the United States to use any Documentation related to the Application Software as made available by Phase3D. Any Documentation that accompanies the Application Software or Hardware is licensed for internal, non-commercial reference purposes only. 

7  Reservation of Rights 

The Application Software and Documentation are licensed, not sold, to User. User acquires no ownership interest in the Application Software or Phase3D Intellectual Property and no rights other than those expressly licensed under the Agreement. Subject to Section 7.4 of the Terms and Conditions, Phase3D retains all ownership rights, title and interest in its Software, Documentation, technology and Intellectual Property, including modifications, improvements, enhancements and derivative works. This reservation of intellectual property rights does not alter passage of title to physical Hardware under Section 3.2 of the Terms and Conditions. 

8  Confidential Information 

Section 9 of the Terms and Conditions governs confidentiality. As a supplement, Phase3D Confidential Information includes information or material proprietary to Phase3D, whether or not owned or developed by Phase3D, obtained through direct or indirect contact with Phase3D. It includes business records and plans, trade secrets, technical data and operations, product ideas, contracts, financial information, pricing structures, discounts, Intellectual Property, sales leads, strategic alliances, partners, customer and client lists, and other information that a reasonable person would understand to be confidential based on its nature or manner of disclosure, whether or not specifically identified as confidential. 

User understands and acknowledges that the Phase3D Confidential Information has been developed or obtained by Phase3D by the investment of significant time, effort and expense, and that the Phase3D Confidential Information is a valuable, special and unique asset of Phase3D which provides Phase3D with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt by User of the Phase3D Confidential Information, User agrees as follows: 

(a) No Disclosure or Use. User will hold Phase3D Confidential Information in confidence and will not use or disclose it for any purpose not expressly authorized by the Agreement. Disclosure to Representatives is permitted only as provided in Section 9 of the Terms and Conditions and subsection (d) below; any other disclosure requires Phase3D's prior written consent. 

(b) No Copying/Modifying. User will not copy or modify any Phase3D Confidential Information without the prior written consent of Phase3D. 

(c) Unauthorized Use. User shall promptly advise Phase3D if User becomes aware of any possible unauthorized disclosure or use of the Phase3D Confidential Information. 

(d) Application to Employees. User shall not disclose any Confidential Information to any of its employees or contractors, except for Representatives who need to know such Phase3D Confidential Information. User shall make sure that such Representatives are subject to duties of confidentiality by internal policies or an individual non-disclosure agreement substantially the same as this EULA. 

(e) Upon termination of the applicable Order or Phase3D's written request, User shall return or destroy Phase3D Confidential Information and provide the written certifications required by Section 9 of the Terms and Conditions. The return, destruction, reporting and injunctive-relief provisions of that Section apply to this EULA. 

9  Non Disparagement 

Non-Disparagement. User agrees that it shall not make disparaging statements oral or written regarding Phase3D or Phase3D’s employees, contractors, technology, products, services or business. For purposes of this Section, a disparaging statement is any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, or good character of the person or entity to whom the communication relates.  

10  User Representations and Warranties 

User Representation and Warranty. As a condition to using the Application Software, you represent and warrant that: (a) you have read and understand this EULA, (b) 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, and (c) you and your Representatives are not listed on any U.S. Government list of prohibited or restricted parties. If you are entering into this EULA on behalf of an entity, you represent and warrant that you have authority to enter into this EULA on such entity’s behalf and bind such entity. 

11  Term Automatic Renewal and Termination 

(a) This EULA applies from the Effective Date for the duration of the applicable Application Software license, subject to termination and the survival provisions below. The initial term of a Term License is the term stated in the applicable Order. A Perpetual License has no renewal term and remains subject to the termination provisions of the Agreement. 

(b) Automatic Renewal. Unless the applicable Order expressly specifies that a Term License is nonrenewing, the Application Software Term License will automatically renew for successive terms of the same duration as its initial license term unless User gives at least sixty (60) days’ written notice of nonrenewal before the end of the then-current term. No sixty (60) day advance notice is required for renewal or for User to elect nonrenewal. Notices must be given in accordance with Section 10.6 of the Terms and Conditions. Renewal fees and payment obligations are governed by the applicable Order and the Terms and Conditions. This provision does not renew a Perpetual License, a Hardware sale, a Services engagement or any other obligation under an Order. 

(c) Termination for breach is governed by Section 2.8 of the Terms and Conditions, including either Party's right to terminate an Order for an uncured material breach after the thirty (30) day cure period and automatic termination of the applicable Order for a breach by User or its Representatives of Section 7 or Section 9 of the Terms and Conditions. A breach of this EULA is a breach of the Agreement; this EULA does not create automatic termination for every breach or eliminate the applicable cure period. 

(d) On expiration or nonrenewal of an Application Software Term License, User and its Representatives must cease using that Application Software and its related Documentation. Expiration or nonrenewal of that license alone does not terminate an otherwise continuing Order, require return of purchased Hardware or terminate other licenses. On termination of the applicable Order, all rights and return and cessation obligations in Section 2.8 of the Terms and Conditions apply, including cessation of use and return of Software and Hardware. 

(e) Expiration or termination does not limit accrued rights or remedies. Sections 2, 3, 5 and 7 through 10 and 12 through 25 of this EULA survive expiration or termination, together with Section 1 and this subsection, to the extent applicable to their subject matter; no license grant survives its expiration or termination. Survival under the Terms and Conditions remains governed by Section 2.8 of those Terms and Conditions. 

12  Disclaimer of Warranties 

SECTION 4 OF THE TERMS AND CONDITIONS GOVERNS WARRANTIES, DISCLAIMERS AND RETURNS. THE FOLLOWING DISCLAIMER IS SUBJECT TO THE EXPRESS WARRANTIES, REMEDIES AND APPLICABLE-LAW QUALIFICATIONS IN THAT SECTION AND DOES NOT DISCLAIM OR REDUCE ANY EXPRESS HARDWARE WARRANTY PROVIDED THEREUNDER. THE SOFTWARE AND HARDWARE ARE PROVIDED TO END USER "AS IS" AND “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PHASE3D, 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 SOFTWARE AND HARDWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, QUIET ENJOYMENT, NONINFRINGEMENT AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PHASE3D PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE OR HARDWARE WILL MEET YOUR 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 (INCLUDING FOR ANY FALSE POSITIVES IN THE DETECTION OF DEFECTS), OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE AND HARDWARE ARE ONLY A TOOL TO AID IN YOUR DECISIONS AND SHOULD NOT AND CANNOT BE RELIED ON SOLELY AS A COMPREHENSIVE OR ACCURATE ASSESSMENT. THE SOFTWARE AND HARDWARE, AND ANY DATA COLLECTED OR GENERATED IN CONNECTION WITH ITS USE, IS NOT A SUBSTITUTE FOR SERVICES, ASSESSMENTS OR DECISIONS OF TRAINED PROFESSIONALS IN THE APPLICABLE FIELD. PHASE3D SHALL HAVE NO LIABILITY FOR ANY DECISIONS MADE BY YOU OR ANY PERSON IN CONNECTION WITH OR IN RELIANCE ON ANY USE OF THE SOFTWARE AND HARDWARE OR ANY DATA COLLECTED OR GENERATED IN CONNECTION WITH SUCH USE. 

13  Safety Critical Medical and Military Applications 

User acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products, and any use of the Hardware or Software, notwithstanding any information or support that may be provided by Phase3D. User represents and agrees that it has all the necessary expertise to create and implement safeguards which anticipate dangerous consequences of failures, monitor failures and their consequences, lessen the likelihood of failures that might cause harm and take appropriate remedial actions. User agrees that all use of the Hardware or Software is for commercial or other applications that do not require Qualified Product Listing (QPL) components. The Hardware and Software products made available by Phase3D are not designed, intended or authorized for use in life support, life sustaining, human implantable, nuclear facilities, flight control systems, or other applications in which the failure of such products could result in personal injury, loss of life or catastrophic property damage. User will fully indemnify Phase3D Indemnitees against any damages arising out of the use of any Hardware or Software in safety-critical applications. Only those Hardware or Software products which Phase3D has specifically designated as military grade are designed and intended for use in military/aerospace applications or environments. User acknowledges and agrees that any military or aerospace use of the Hardware or Software products which have not been so designated is solely at the User’s risk, and that User is solely responsible for compliance with all legal and regulatory requirements in connection with such use. 

Section 4.9 of the Terms and Conditions also applies. The indemnification described here is the same safety-critical indemnification under that Section and does not create a second recovery for the same loss. 

14  Limitation of Liability 

SECTION 6 OF THE TERMS AND CONDITIONS, INCLUDING SECTIONS 6.1 AND 6.2, GOVERNS ALL LIABILITY ARISING OUT OF OR RELATING TO THIS EULA. ITS DAMAGE EXCLUSIONS, CUMULATIVE LIABILITY LIMITS, PRE-PRODUCTION LIMIT AND APPLICABLE-LAW QUALIFICATIONS APPLY. THIS EULA DOES NOT CREATE A SEPARATE SOFTWARE LIABILITY CAP OR INCREASE OR DECREASE THE LIMITS IN THE TERMS AND CONDITIONS. ANY LIABILITY UNDER SECTION 15 OF THIS EULA IS SUBJECT TO THOSE LIMITS. 

15  Indemnification 

Customer Indemnification. User's defense, indemnification and hold-harmless obligations are governed by Section 5 and, for safety-critical applications, Section 4.9 of the Terms and Conditions. Those obligations apply to Application Software, Data and breaches of this EULA. This Section does not duplicate recovery under those provisions. 

Phase3D Software Infringement Indemnity. As to Application Software proposed and furnished by Phase3D, Phase3D shall defend any suit or proceeding brought by a third party against you, and indemnify and hold you harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent based on such Application Software product’s, as provided to you and used within the scope of this EULA, infringement of any U.S. patent, copyright, trade secret or trademark of any third party, subject to the limitations set forth herein; but only if you notify Phase3D promptly in writing of such claim, suit or proceeding and give Phase3D sole control of any defense or settlement negotiations, and, at Phase3D’s expense, gives Phase3D proper and full information and assistance. If Phase3D believes that the Application Software may be subject to injunction, then Phase3D may, at its option and expense: (a) procure for you a license to use such product; (b) replace such product(s) with other comparable products, or (c) modify such product(s). If none of these alternatives are possible notwithstanding Phase3D's commercially reasonable efforts, you may terminate the affected Application Software license, in its entirety or with respect to the affected component or part. Phase3D will not be responsible for any compromise or settlement made without its written consent. Phase3D’s obligations under this Section 15 do not apply to any claim based on: (i) a use of other than the current version of the Application Software product, if the infringement would have been avoided by use of the current version; (ii) modification of such product by you or any person other than Phase3D; (iii) the combination or use of such product with technology or materials not furnished by Phase3D, if such infringement would have been avoided by the use of such product alone; or (iv) modification of such product supplied by Phase3D according to instructions or to a design furnished by you or your Representatives. THE FOREGOING STATES THE ENTIRE LIABILITY OF PHASE3D FOR INTELLECTUAL PROPERTY INFRINGEMENT, AND IN NO EVENT SHALL PHASE3D BE LIABLE IF ANY INFRINGEMENT CHARGE IS BASED ON THE USE OF ANY APPLICATION SOFTWARE PRODUCT FOR A PURPOSE OTHER THAN THAT FOR WHICH IT WAS LICENSED BY PHASE3D.   

This express software infringement obligation supplements the Customer indemnity in the Terms and Conditions; it does not replace that indemnity, create any Hardware or Services infringement indemnity, or alter the liability limits in Section 6 of the Terms and Conditions. Termination under this Section does not by itself terminate unrelated portions of the applicable Order. 

16  Other Limitations and Time to File Claims 

Section 6.2 of the Terms and Conditions governs exclusive remedies, other obligations and limitations, and the time to bring an action, including its authorized-writing exception. The same twelve (12) month period measured from when the facts occurred giving rise to the cause of action applies to claims under this EULA. This EULA does not establish a different period measured from accrual or any additional limitation period. 

17  Compliance with Laws and Export Regulation 

You shall comply with all applicable international, national, state, regional and local laws and regulations in performing your obligations and exercising your rights under this EULA. You acknowledge that applicable laws in your jurisdiction may impose certain responsibilities on you and your use of the Software and Hardware. You acknowledge that it is solely your responsibility, and not the responsibility of Phase3D, to ensure that you are in compliance with any such laws when you use the Software and Hardware. The Software and Hardware may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software and Hardware to, or make the Software and Hardware accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software and Hardware available outside the US. 

Sections 2.9, 10.7 and 10.8 of the Terms and Conditions also apply. Obtaining regulatory permits or licenses does not itself supply any required Phase3D consent or expand the territory of a license. 

18  Severability 

Section 10.14 of the Terms and Conditions governs severability, subject to the specific nonseverability provision in Section 10.1 governing individual arbitration. This EULA does not alter either provision. 

19  Arbitration 

Section 10.1 of the Terms and Conditions governs any dispute, controversy or claim arising out of the Agreement, including this EULA. Its binding arbitration provisions, applicable American Arbitration Association rules, single arbitrator, fee allocation, English-language proceedings, Chicago or mutually convenient location, arbitrator selection, judgment enforcement, individual-only proceedings and injunctive-relief exception apply without modification. 

20  Governing Law 

Section 10.2 of the Terms and Conditions governs the Agreement, including this EULA. Illinois law applies without regard to conflict-of-laws principles. This EULA creates no separate exclusive court venue or jury-trial waiver and does not limit the court access permitted by Section 10.1 of the Terms and Conditions. 

21  Assignment 

Phase3D may freely transfer or assign the Agreement and any of its rights or obligations hereunder. User shall not assign the Agreement, or any part thereof, directly or indirectly, without the prior written consent of Phase3D. Any such attempted assignment shall be void.    

22  Modifications and Notices 

Modifications to the Agreement, including this incorporated EULA, are governed by Sections 10.9 and 10.16 of the Terms and Conditions. This EULA creates no separate amendment procedure. Notices under this EULA, including notices of nonrenewal, are governed by Section 10.6 of the Terms and Conditions. 

23  Subcontractors 

Phase3D may utilize subcontractors or other third parties to exercise its rights or perform its duties hereunder.  

24  Entire Agreement 

The Terms and Conditions, the applicable Order and the documents incorporated by reference, including this EULA, collectively constitute the entire Agreement as provided in Section 10.16 of the Terms and Conditions. This EULA does not independently supersede any part of those documents or other written terms validly incorporated into the Agreement. The integration and order-of-precedence language in Section 1 of this EULA governs its relationship to those documents. 

25  Waiver 

Section 10.13 of the Terms and Conditions governs waiver under the Agreement, including this EULA. No failure or delay in exercising a right under this EULA changes the integration or order-of-precedence provisions of the Agreement.