1. LICENSE GRANT
1.1 License Rights. Subject to the limitations and restrictions set forth herein, Near Earth hereby grants to Licensee a limited, revocable, non-exclusive, non-transferable license (without the right to sublicense) to access and use the Application. Except for the license granted pursuant to this section, Near Earth does not grant Licensee any right, by implication or otherwise, in or to the Application (or any derivatives thereof). Only users with valid login credentials shall be authorized to use the Application, and Licensee shall be responsible for protecting its login credentials and the login credentials of any user that gains access to the Application through Licensee.
1.2 Restrictions on Use and Transfer. Licensee shall not sell, lease, assign, sublicense or otherwise transfer the Application or its rights to access the same, in whole or in part, to any third party. Licensee shall not modify the Application or the underlying software in any manner, nor shall Licensee use the Application for any purpose inconsistent with the license grant set forth herein or otherwise described in any quote issued by Near Earth. Licensee agrees that the Application and all associated object code and source code is owned solely and exclusively by Near Earth. Licensee shall not decompile, disassemble, reverse engineer or otherwise manipulate the Application or any associated software so as to derive its source code.
2. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
2.1 Intellectual Property Rights. The Application and all associated software are solely and exclusively owned by Near Earth. No right, title or interest in or to the Application or any associated software, including, without limitation, any modifications to and other derivative works of the foregoing and all intellectual property rights therein, is transferred to Licensee by way of this Agreement, except for the license granted pursuant to this Agreement. Licensee may not copy or otherwise use the Application, in whole or in part, except as expressly permitted by this Agreement. License hereby grants to Near Earth a royalty-free, worldwide, perpetual, irrevocable right and license to access and use all information and data entered into the Application by Licensee for internal business purposes. Near Earth agrees not to transfer or sell any such data to third parties for commercial purposes. Near Earth assumes no responsibility or liability for any personal data or personally identifiable information that Licensee enters into the Application.
2.2 Feedback. Near Earth shall exclusively own and have the right to freely use all ideas, inventions, feedback, suggestions, improvements, modifications and other developments relating to the Application suggested or created by either party in connection with this Agreement, without any obligation to obtain consent or pay compensation to Licensee. Without limiting any of the foregoing, and notwithstanding anything in this Agreement to the contrary, Near Earth may use metrics from implementation and use of the Application internally to improve Near Earth’s products and validation rules and may aggregate such metrics with other customers’ metrics and disclose the aggregated, non-customer-specific metrics in the form of industry metrics.
3. NO WARRANTY
LICENSEE UNDERSTANDS THAT THE APPLICATION IS CURRENTLY BEING PROVIDED IN BETA FORM AND MAY CONTAIN DEFECTS, ERRORS AND/OR INTERRUPRTIONS OF SERVICE. THE APPLICATION IS PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER WITH RESPECT TO ITS FUNCTIONALITY, OPERABILITY OR USE. NEAR EARTH HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION, OR THE CONDITION OR SUITABILITY OF THE APPLICATION, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
4. LIMITATION OF LIABILITY
IN NO EVENT SHALL NEAR EARTH, ITS SHAREHOLDERS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES BE LIABLE FOR ANY LOSSES, DAMAGES OR LIABILITIES WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE APPLICATION, INCLUDING WITHOUT LIMITATION DIRECT DAMAGES, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSSES RESULTING FROM BUSINESS INTERRUPTIONS, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY UNDER WHICH THE LIABILITY MAY BE ASSERTED, EVEN IF NEAR EARTH IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
5. TERM AND TERMINATION
The term of this Agreement becomes effective on the date Licensee first accesses the Application and shall remain in effect during all periods of use by Licensee. Near Earth reserves the right to terminate this Agreement and revoke Licensee’s access to the Application if Licensee fails to comply with any of the terms or conditions contained herein. Licensee shall immediately cease use of the Application upon expiration or termination of this Agreement. Sections 1.2, 2, 3, 4, 5 and 6 shall survive the expiration or termination of this Agreement.
6. MISCELLANEOUS PROVISIONS
6.1 Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, without giving effect to principles of conflicts of laws. The parties agree that all actions and proceedings arising out of or related to this Agreement shall be brought only in a state or federal court located in Pittsburgh, Pennsylvania, and the parties hereby consent to such venue and to the jurisdiction of such courts.
6.2 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between the parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged. No waiver by Near Earth of any right shall be deemed to be a waiver of any other right of Near Earth arising under this Agreement.
6.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, to Near Earth Autonomy Inc., C/O Marcel Bergerman, 150 N Lexington St., Pittsburgh, PA 15208.
6.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, such provision's application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.
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