2. Tonomi End-User License Agreement

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE Tonomi Fabric CONTROLLER SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “FABRIC CONTROLLER”).

THE TERMS AND CONDITIONS OF THIS TONOMI END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERN USE OF THE FABRIC CONTROLLER UNLESS YOU (“CUSTOMER”) AND TONOMI, INC. (“Tonomi”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE FABRIC CONTROLLER.

Tonomi and Customer have executed the Tonomi Platform Agreement (“Service Agreement”) pursuant to which Tonomi provides Customer with the right to access and use Tonomi’s SaaS solution known as “Tonomi Adaptive PaaS” (the “Tonomi Platform”). Under the Service Agreement Customer acknowledges that, in order to access and use the Tonomi Platform, it is required to download and install the Tonomi Fabric Controller (“Fabric Controller”). Tonomi is willing to license the Fabric Controller to Customer only upon the condition that Customer accepts all the terms contained in this Agreement. By installing the Fabric Controller, Customer is indicating that it accepts and agrees to be bound by all the terms of this Agreement. If Customer does not agree to and accept all the terms of this Agreement, then Tonomi is unwilling to license the Fabric Controller to Customer and Customer has no right to use it.

  1. Grant of License. Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, Tonomi grants Customer a non-exclusive and non-transferable license to Execute (as defined herein) the executable form of the Fabric Controller on a single computer, solely for Customer’s internal purposes in conjunction with Customer’s authorized use of the Tonomi Platform. Customer may make a single copy of the Fabric Controller for backup purposes; provided that Customer reproduces on it all copyright and other proprietary notices that are on the original copy of the Fabric Controller. Tonomi reserves all rights in the Fabric Controller not expressly granted to Customer in this Agreement. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and run the Fabric Controller in order to benefit from its functionality as designed by Tonomi.
  2. Restrictions. Customer may not use the Fabric Controller for any purpose other than in conjunction with Customer’s authorized use of the Tonomi Platform. Except as expressly specified in this Agreement, Customer may not: (a) copy (except in the course of loading or installing) or modify the Fabric Controller, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Fabric Controller; or (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Fabric Controller to any third party. Customer acknowledges and agrees that portions of the Fabric Controller, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Tonomi and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Fabric Controller, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
  3. Ownership. The Fabric Controller is licensed by Tonomi, not sold. Tonomi exclusively owns all rights, title and interests in and to the Fabric Controller itself, including all intellectual property rights therein. The Fabric Controller is protected by United States copyright law and international treaties. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Fabric Controller as delivered to Customer.
  4. Term. This Agreement is effective as of the date Customer accepts its terms and conditions and, unless earlier terminated in accordance with its terms, will remain in effect until the expiration or any termination of the Service Agreement. Either party may terminate this Agreement upon written notice if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party. Upon termination, Customer must at Tonomi’s option either promptly destroy or return to Tonomi all copies of the Fabric Controller in Customer possession or control.
  5. Limited Warranty. Tonomi warrants that during the term of this Agreement the Fabric Controller will perform in all material respects in accordance with its Documentation. As Customer’s sole and exclusive remedy and Tonomi’s entire liability for any breach of this limited warranty, Tonomi will at its option and expense correct or replace the Fabric Controller so that it conforms to this limited warranty. Tonomi does not warrant that the Fabric Controller will meet Customer’s requirements or that operation of the Fabric Controller will be error-free or uninterrupted or that all Fabric Controller errors will be corrected.
  6. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 5 IS IN LIEU OF AND TONOMI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TONOMI OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
  7. Limitation of Liability. TONOMI TOTAL LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAID TO TONOMI BY CUSTOMER UNDER THE AGREEMENT. IN NO EVENT WILL TONOMI BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE FABRIC CONTROLLER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT Tonomi HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  8. Export Law. Customer agrees to comply fully with all U.S. export laws and regulations to ensure that neither the Fabric Controller nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
  9. General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Customer may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Tonomi’s prior written consent, and any attempt by Customer to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless Customer and Tonomi have executed a separate agreement. Any terms or conditions contained in a Customer purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Tonomi and will be deemed null.
  10. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing. Such notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by fax or (v) by e-mail and such notices shall be addressed as specified on then-current Order Form. Notices so given shall be effective upon (i) receipt by the party to which notice is given, or (ii) on the fifth day following mailing, whichever occurs first.