METAVISION® SDK AND
METAVISION® SDK PRO
LICENSING TERMS AND CONDITIONS
Version 8 June 2023
THESE METAVISION® SDK AND METAVISION® SDK PRO LICENSING TERMS AND CONDITIONS (“License T&C’s“) are applicable between PROPHESEE S.A., a company duly organized and existing under the laws of France, whose registered office is 74, rue du Faubourg Saint-Antoine, 75012 Paris, France (“PROPHESEE“) and any entities whatsoever (the “LICENSEE”) having either i) filled out the dedicated subscription form online available (the “Subscription Form”) in order to get access rights to METAVISION® SDK (as further defined below); or ii) having received a commercial offer from PROPHESEE detailing the compensation licensing conditions (the “Quotation”) and having placed a purchase order based on the Quotation (the “PO”) in order to get access rights to METAVISION® SDK PRO (as further defined below). Unless otherwise agreed in written between the parties in e.g. specific terms and conditions, no other terms shall apply, and e.g. the LICENSEE’s terms and conditions of purchase are excluded even if attached to the LICENSEE’s purchase order or to any other documents. In case of discrepancy between these License T&C’s and another document alleged by the LICENSEE, these License T&C’s shall prevail over the latter (collectively hereinafter individually referred to as a “Party” or collectively as the “Parties”)
PROPHESEE IS ONLY WILLING TO LICENSE METAVISION® SDK AND METAVISION® SDK PRO (as further defined below) TO LICENSEE SUBJECT TO HIS ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS AS SET FORTH HEREIN WITHOUT RESERVE. BY DOWNLOADING, INSTALLING OR OTHERWISE USING OR COPYING METAVISION®, LICENSEE INDICATES THAT HE AGREES TO BE BOUND BY ALL THE License T&C’s HEREIN. IF LICENSEE DOES NOT AGREE WITH THESE License T&C’s OR MAKE HIS ACCEPTANCE CONDITIONAL UPON MODIFICATIONS TO ANY OF THESE License T&C’s, NO License IS GRANTED TO LICENSEE ON METAVISION® SDK AND METAVISION® SDK PRO, LICENSEE SHOULD NOT DOWNLOAD, INSTALL, USE OR COPY METAVISION® AND ANY PORTIONS OF.
ACCEPTING THESE License T&C’s, GRANTS LICENSEE THE RIGHTS BELOW, ALWAYS SUBJECT TO HIS FULL OBSERVANCE OF THE License T&C’s:
– “Derivative Work” shall mean the results from the Development (has defined below) performed by the LICENSEE with the help of the METAVISION® SDK PRO in accordance with the License T&Cs, that substantially transforms, adapts or modify METAVISION®, which shall become original part of the Device Software and on which LICENSEE shall be the copyright owner;
– “Developers” shall mean the employees of the LICENSEE whose limited number and identity are specified by the LICENSEE in the Subscription Form and that will be granted access to METAVISION® for the limited purpose of the License (as further defined below).
– “Device” shall mean any hardware device such as but not limited to a camera, a compute platform or an ASP that is based on or embed a Prophesee Product (as further defined below) and that is designed, developed and/or manufactured by the LICENSEE or its sublicensed End-Users and that incorporates, integrates and/or runs the Device Software;
– “Device Software” shall mean the part of METAVISION® in case of METAVISION® SDK and the Derivative Work and their relative dependencies in METAVISION® SDK PRO that are embodied in a Device;
– “End-User” shall mean a customer of the LICENSEE (i) to who the LICENSEE grants a sublicense on a Device Software in accordance with the Section 2.1 and subject to the Section 2.2; and/or (ii) who purchases a Device from the LICENSEE;
– “Intellectual Property Rights” or “IPR” shall mean any and all intellectual property rights throughout the world, including without limitation any and all inventions (whether or not patentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications and patent disclosures, together with all re-issuances, divisions, continuations, continuations-in-part, revisions, renewals, extensions and reexaminations thereof, works of authorship, database rights, copyrightable works (including the copyright on software in any codes), copyrights (and any applications, registrations and renewals therefore or thereto), topography or semiconductor or other mask work rights, all moral rights, registered or unregistered trademarks (and any applications, registrations, renewals therefor or thereto), logos, service marks, trade dress, domain names, trade names, corporate names, and any translations, adaptations, derivations and combinations thereof (solely to the extent such translations, adaptations, derivations and/or combinations are protected under applicable intellectual property law in which such enforcement is sought), and any goodwill associated with any of the foregoing, applications for any of the foregoing, trade secret rights, moral rights, unregistered design rights, rights to know-how, inventions, and algorithms, and any and all similar or equivalent rights throughout the world, whether under any country or jurisdiction in the world or international conventions;
– “METAVISION®” shall mean a software suite designed by PROPHESEE for providing the LICENSEE a design kit and plug-ins to easily operate, design and customize its own Event-Based Vision solution. METAVISION® combines both: (i) PROPHESEE proprietary libraries and algorithms (“Proprietary Libraries”) and (ii) dynamic links to or codes inclusions of open-source libraries subject to non-copyleft open-source licenses (“Open-Source Libraries”);
– “METAVISION® SDK” shall mean METAVISION® whose access to LICENSEE is granted in binaries form, subject to the License T&C’s herein;
– “METAVISION® SDK PRO” shall mean METAVISION® SDK plus access granted to C++ libraries in source code, subject to the License T&C’s herein;
– “Party or Parties” shall mean individually either the LICENSEE or PROPHESEE or collectively both of them;
– “Prophesee Product” shall mean an Event-Based Vision technology evaluation kit and/or sensor commercialized or loaned by PROPHESEE or one of its official business partners. The list of the Prophesee Product is available on: https://www.prophesee.ai/buy-event-based-products/ and official business partners is available upon request at firstname.lastname@example.org ;
– “Updates” shall mean any and all changes, modifications, reconfigurations, improvements, translations, transformations, derivative works, and/or enhancements of METAVISION® provided from time to time by PROPHESEE to LICENSEE.
- LICENSE AGREEMENT
Access to METAVISION® is granted by PROPHESEE to LICENSEE, at its option, under either METAVISION® SDK (1.1) or METAVISION® SDK PRO (1.2) licenses.
1.1 METAVISION® SDK License Agreement. BY CLICKING “I read and accept the above Terms and Conditions and declare that the information provided is true and correct”, THEN BY FURTHER DOWNLOADING, INSTALLING OR OTHERWISE USING OR COPYING METAVISION® SDK, LICENSEE INDICATES THAT HE AGREES TO BE BOUND BY ALL THESE License T&C’s HEREIN, WHAT WILL MAKE LICENSEE INTO A BINDING LICENSE AGREEMENT (the “License Agreement”).
1.2. METAVISION® SDK PRO License Agreement. Access to METAVISION® SDK PRO is subject to a request for quotation by LICENSEE to PROPHESEE and a quotation issuance. A Quotation shall not represent a PROPHESEE’s binding commitment to license METAVISION® SDK PRO to the LICENSEE, until the LICENSEE has placed a purchase order (“PO”) to PROPHESEE pursuant to this Quotation and PROPHESEE has confirmed its acceptance of such PO in written by email to the LICENSEE (“Order Confirmation”). PROPHESEE may further withdraw its Quotation prior to the term of the Quotation’s validity period, as set forth by default to thirty (30) days, unless stated otherwise in the Quotation. Failing to receive a PO within the validity period of the Quotation, it shall be deemed as automatically withdrawn at its expiration date. PROPHESEE may also partially accept a PO in its Order Confirmation, by specifying therein changes, reserves and/or conditions to its Quotations or the PO acceptance. Without refusal to such changes, reserves and/or conditions upon receipt by the LICENSEE, the terms of the Order Confirmations shall be deemed as final and binding between the LICENSEE and PROPHESEE. Once the LICENSEE has placed a PO pursuant to a Quotation and PROPHESEE has accepted such PO by Order Confirmation, the Parties are deemed as irrevocably bound by a final license agreement with effective date as from the date of the Order Confirmation (the “Effective Date”), whose documents as follows form integral part of, by order of precedence: i) the Order Confirmation; ii) the Quotation; iii) the PO and the Subscription Form; iv) the non-disclosure agreement as may be executed between the Parties; and iv) the T&C’s herein (hereinafter collectively referred to as the “License Agreement”). Such License Agreement constitutes an entire and final agreement between the Parties with respect to the license of METAVISION® SDK PRO to the LICENSEE and its associated support services and supersedes any prior discussions, negotiations and agreements.
- LICENSE GRANT
2.1. License of the Proprietary Libraries of METAVISION®. Subject to the License T&C’s herein and full payment of the Compensation as set forth below in Section 5 and for the duration of the License Agreement in case of METAVISION® SDK PRO, PROPHESEE grants LICENSEE a non-exclusive, worldwide, non-transferable (whether by assignment, law or otherwise), sub-licensable in accordance with the Section 2.1 (d) below, royalty free for METAVISION® SDK or royalty bearing for METAVISION® SDK PRO, revocable in accordance with the terms and conditions set forth in these License T&C’s, limited, license to (hereinafter referred to as the “License”):
(a) install, run, test and perform one copy of METAVISION® per Developer, whose Proprietary Libraries are delivered by PROPHESEE, for Development purpose. “Development” as used herein means (i) creating, designing, developing, configuring and testing a Device Software and Derivative Work in case of METAVISION® SDK PRO; and (ii) integrating the Device Software into a Device;
(b) run, copy, display and perform the Device Software for Demonstration purpose. “Demonstration” as used herein means (i) demonstration by LICENSEE to End-Users in connection or combination with a Device for internal End-Users test, review and evaluation purposes; and (ii) demonstration of the Device Software in connection with or embodied in a Device, to or by End-User for evaluation of, among other things, the ease of use, or the performance of such Device Software and/or Device; and (iii) the promotion by LICENSEE of sample versions of the Device Software always in connection or combination with a Device;
(c) manufacture, have manufactured on its behalf, market, offer for sale and distribute the Device Software always in connection or combination with a Device to End-Users;
(d) sublicense the Device Software to End-Users with its relative dependencies in the Proprietary Libraries in binary form only, and subject to terms and conditions at least as restrictive as those set forth in these License T&C’s, for using the Device Software and the Device licensed and/or sold to them by the LICENSEE, then for designing, developing, manufacturing, have manufactured on their behalf, market, offer for sale, sell and distribute their own Device, always in connection, combination with or as embodying a Prophesee Product;
The License above is granted provided that LICENSEE reproduces and apply to such copy of METAVISION®, any copyrights and proprietary and licensing rights included on or embedded in the Proprietary Libraries and complies with the License Restrictions on the Proprietary Libraries as set forth below in Section 2.2.
2.2 License Restrictions on the Proprietary Libraries. License granted pursuant to 2.1 above does not grant the LICENSEE the right to:
(i) use the Proprietary Libraries or any portion thereof, except as expressly and exhaustively authorized in 2.1;
(ii) disclose or otherwise make available or accessible the Proprietary Libraries to third parties otherwise than to End-Users as set forth above in Section 2.1, third parties including those which could access to or participate in Demonstration, whether by assignment, rental, lease, timeshare, transfer of any other means;
(iii) reverse engineer, disassemble and decompile METAVISION® in whole or in part;
(iv) conceal or remove any title, trademark, copyright, proprietary and restricted rights notices contained in METAVISION®;
(v) provide access or grant any rights or license to any source codes of the Proprietary Libraries and to any IPR in any Prophesee Product;
(vi) design, develop, manufacture, have manufactured on their behalf, market, offer for sale, sell and distribute a Device Software and a Device that is neither based on, nor embodies a Prophesee Product;
(vi) develop or have developed any Updates;
(vii) assert or oppose any Derivative Work and IPR therein to PROPHESEE, its grantors, successors and assigns, or claim infringement by PROPHESEE its grantors, successors and assigns of any IPR owned by LICENSEE, its grantors, successors and assigns in the Derivative Work;
(viii) integrate in any part of the Proprietary Libraries and integrate any part of the Proprietary Libraries into (i) GPL- or LGPL- (GNU General Public License or GNU Lesser/Library General Public License) licensed-codes intended for distribution, (ii) Mozilla Public License, (iii) Common Public License, Common Development and Distribution License, or (iv) any other free or open-source licensed software that would require publication or giving any rights to third parties in METAVISION® or the Device Software not permitted by these License T&C’s.
2.3. License of the Open-Source Libraries of METAVISION®. METAVISION® and its Updates include (i) mainly dynamic links to Open-Source Libraries subject to non-copyleft open-source licenses and in particular, some libraries are subject to GNU Lesser General Public License (“LGPL”) as available here: LGPLv3, LGPLv2.1, as addending GPLv3, GPLv2 ; and (ii) a few headers as codes inclusion whose source codes has not been modified and is separately available upon request to : email@example.com. Licensing terms and conditions of all Open-Source Libraries as well as their copyrights and applicable disclaimers are detailed and available in the table linked here: https://docs.prophesee.ai/stable/open_source_licenses.html (the “Open-Source Licenses Table”). This Open-Source Licenses Table will be updated in case of Update. The table for a specific version can be accessed here: https://docs.prophesee.ai/VERSION/open_source_licenses.html.
BY ORDERING METAVISION® AND BY FURTHER DOWNLOADING, INSTALLING OR OTHERWISE USING OR COPYING METAVISION® AND ITS Updates, IF ANY, LICENSEE COMMITS TO (i) DOWNLOAD ALL Open-Source Libraries LICENSES, COPYRIGHTS AND DISCLAIMERS THAT ARE LISTED AND AVAILABLE IN THE Open-Source Licenses Table AS LINKED ABOVE, (ii) TO COMPLY WITH AND APPLY ALL Open-Source Libraries LICENSES TERMS AND CONDITIONS, COPYRIGHTS AND DISCLAIMERS LISTED IN THE Open-Source Licenses Table (iii) TO HOLD PROPHESEE, ITS DIRECTORS, OFFICERS, EMPLOYEES, INSURANCE COMPANIES, GRANTORS, SUCCESSORS AND ASSIGNS HARMLESS AND TO INDEMNIFY THEM FOR ANY LIABILITIES AND DAMAGES THAT MAY RESULT FROM LICENSEE’S FAILURE TO COMPLY WITH PROVISION (ii) ABOVE.
- OWNERSHIP AND RESERVATION OF RIGHTS
LICENSEE acknowledges that PROPHESEE and its grantors, retain all right, title and interest (including, without limitation, all IPR) in and to (i) the Proprietary Libraries including all Updates thereto; (ii) the Prophesee Product; (iii) the manufacturing process technology of the Prophesee Product. All rights relating to the Proprietary Libraries that are not expressly granted hereunder to LICENSEE are reserved and retained by PROPHESEE and its grantors.
- SUPPORT SERVICES
METAVISION® SDK License is granted without support. LICENSEE may be provided Update and bug fixing (4.1) and further commercial support (4.2) upon subscription of a METAVISION® SDK PRO License Agreement (see Section 1.2 above).
4.1. Update and support for bug fixing of METAVISION® SDK PRO License. For a period of one (1) year after delivery of METAVISION® SDK PRO, PROPHESEE will use reasonable efforts to provide Updates and technical support within the hourly limit specified in the License Agreement via telephone, email and web portal to fix any METAVISION® bugs and installation issues. Support will be delivered by a member of PROPHESEE technical support (firstname.lastname@example.org) team during the business hours.
Should PROPHESEE in its sole judgment determine that there is a defect in METAVISION®, it will, at its sole option, repair that defect by delivering the version of METAVISION® that is currently used or instruct LICENSEE to install an Update when available with that defect repaired. PROPHESEE reserves the right to provide LICENSEE with a workaround in lieu of fixing a defect.
Should LICENSEE report a purported defect in METAVISION® to PROPHESEE, PROPHESEE may ask LICENSEE to provide the following information: (i) a general description of the operating environment, (ii) a list of all hardware components, operating systems and other software, and networks, (iii) a reproducible test case, and (iv) any log files, trace and systems files. Failure to provide this information may prevent PROPHESEE from identifying and possibly fixing that purported defect. PROPHESEE will have no obligation of any kind to provide technical support, maintenance or bug fixing, (a) in the event the defect or bug cannot be reproduced on its reference platform (i.e. a state of the art desktop station or laptop using Ubuntu Linux LTS or Microsoft® Windows® 10 or above operating system respective versions) or (b) for problems caused by or arising out of any of the following: (i) modifications to METAVISION® not made by PROPHESEE; (ii) use of METAVISION® other than as authorized in the License Agreement or as provided in its documentation; (iii) LICENSEE negligence or fault; (iv) LICENSEE’s external or internal programing, software or scripts; (iv) third-party products not expressly supported by PROPHESEE; or (v) conflicts related to replacing or installing hardware, drivers, and software that has not been PROPHESEE certified (collectively “Not Supported Bugs”).
4.2. Commercial Support Services attached to METAVISION® SDK PRO License. During the term of the License Agreement, Developers shall have individual access to the PROPHESEE Knowledge Center and the Event-Based Vision community forum. Additional support services to Developers with respect to the installation, running and use of METAVISION® (the “Support Services”) are available and may be either detailed in the License Agreement, or requested for quotation by LICENSEE to PROPHESEE. Support Services shall be invoiced according to applicable support commercial terms and conditions and shall be made available to LICENSEE, subject to prior quotation and PO.
Any Support Services provided to support a Not Supported Bugs shall be invoiced by PROPHESEE to LICENSEE at the usual applicable support commercial terms and conditions and rate.
- COMPENSATION TO THE METAVISION® SDK PRO LICENSE
5.1. Invoicing. In consideration of and as a full and final compensation to the (i) the License granted by PROPHESEE to METAVISION® SDK PRO, and (ii) the deliveries of METAVISION® and the services performed by PROPHESEE and (iii) the sublicensing rights granted by PROPHESEE to LICENSEE pursuant of 2.1.(d)above, LICENSEE agrees to pay respectively to PROPHESEE the upfront License Fee and the Royalty Fee or Substitution Fee whose amounts are detailed in the Quotation and following the process and conditions detailed in Sections 5.2 to 5.3 below.
5.2 License Fee. In consideration and as full and final compensation of the Developers access right granted to METAVISION® number of copies set forth in the License Agreement, the License and the services provided by PROPHESEE, LICENSEE agrees to pay PROPHESEE: an access right lump sum upfront amount whose amount is detailed in the Quotation (“License Fee”). This License Fee is neither refundable, cancellable nor transferable even if LICENSEE decides to exert none of the licensing rights granted herein.
5.3. Royalty Fee. In consideration of the sub-license granted by PROPHESEE to the LICENSEE pursuant to Section 2.1. (d) above, the per unit royalties fees (“Royalty Fee”) whose amount is detailed in the Quotation for any and each unit of Device sold by the LICENSEE to End-Users and each Device sold by End-Users, being understood and agreed by the Parties that if at least one Device is commercially sold by LICENSEE and/or any End-Users as embedding a part of the Device Software, then the Royalty Fee is due for each unit of Device.
5.3.1. Subject to Section 2.1 provisions and before any part of the Device Software is integrated into a new Device and/or licensing rights are granted to an End-User on a part of the Device Software, LICENSEE shall provide PROPHESEE with written notification defining (a) the date of first Device Software shipment and the Device Software access rights granted from LICENSEE to End-Users; and (b) the name and location of the End-User; and (c) information allowing to identify and track such Device and Device Software type, such as e.g. description of a camera imaging processing chip, geographical areas where such Device type will be commercially available.
5.3.2. During the production period of Devices, within fifteen (15) days after the end of each quarter, LICENSEE will provide PROPHESEE with a sales report stating the number of units of Devices shipped to End-Users and the number of Device Software licensed to End-Users as well as the number of units of Devices sold by End-Users during the preceding quarter.
Once PROPHESEE has received and checked the reported information, PROPHESEE will issue an invoice to charge LICENSEE the Royalty Fee for the units reported for such quarter based on the agreed Royalty Fee per unit as set in the Quotation, computed and aggregated from the Effective Date. The fact PROPHESEE issues an invoice based on LICENSEE’s units report shall not operate to void any right for PROPHESEE to conduct any further audit for such period as expressed in Section 5.6 below.
Should LICENSEE fail to provide PROPHESEE with such report in due time, PROPHESEE shall charge LICENSEE a provisional amount corresponding to the highest previous reported quarter. Should LICENSEE fail to provide PROPHESEE with two (2) or more successive reports in due time, a penalty corresponding to the late payment induced by the late reporting according to Section 5.4 rules, shall apply on the amount to be paid by LICENSEE at such contractual due date of payment, which computing rules are detailed in Section 5.4 below.
5.3.3. In case the LICENSEE is not capable for technical or legal reasons to provide PROPHESEE with the number of Devices shipped and/or the number of Device Software licensed to End-Users as well as the number of units of Devices sold by End-Users, LICENSEE shall detail its incapacity in the notification to be served to PROPHESEE pursuant to Section 5.3.1 above. Upon receipt of such notification and prior to any commercialization of the Device or Device Software by LICENSEE, the Parties will discuss in good faith and agree with a special compensation to the sublicensing rights to be granted by PROPHESEE to LICENSEE in accordance with Section 2.1.(d) that will substitute and, in any cases, result in a higher amount as the Royalty Fee (the “Substitution Fee”). For the sake of clarity, the sublicensing rights to be granted pursuant to Section 2.1.(d) are subject always to: (i) such agreement between the Parties on the Substitution Fee; and (ii) complete and full payment of the Substitution Fee by LICENSEE to PROPHESEE once agreed.
5.4. Payment terms. LICENSEE shall make all payments required hereunder net and free of any deduction, withholding, or other bank fees and charges. No payment by any other person than the LICENSEE is authorized. PROPHESEE reserves the right to send the payment back to the payer in case of any payment made by a third party and to charge bank transfer fees resulting from such transaction to the LICENSEE, without prejudice to further claim or indemnification PROPHESEE could claim for bad or late payment.
Each payment hereunder shall be made by LICENSEE to PROPHESEE by wire transfer within thirty (30) days of LICENSEE’s receipt of an invoice; therefore, it is agreed by the Parties that the date of an invoice sent in pdf file format attached to an electronic mail is considered as the date of such receipt. Should LICENSEE fail to provide PROPHESEE with its quarter reports in due time, LICENSEE payment terms will be reduced accordingly to avoid delaying the actual date of payment to PROPHESEE which would otherwise have been applicable.
All amounts payable by LICENSEE under this Agreement shall be paid in Euros, US Dollars or in RMB, in accordance with the currency as set forth in the License Agreement, net of all fees (including but not limited to any bank, transfer and exchanges fees).
A fixed compensation amount of forty euros (40€) for recovery costs shall automatically be due, without prior notice, by the LICENSEE for any invoiced amount not fully paid by its due date, in accordance with the articles L.441-6 and D.441-5 of the French Commercial Code. In addition, PROPHESEE shall be entitled to claim additional compensation if the recovery costs exceed such fixed compensation amount. On top of these recovery costs, LICENSEE shall pay interest to PROPHESEE on the aggregate amount of any payments that are not paid on or before the date such payments are due under a License Agreement, at a rate per annum equal to the interest rate applied by the European Central Bank in its latest refinancing operation plus ten per cent (10%) from the due date of such payment, or the highest rate permitted by applicable law, calculated on the number of days such payments are paid after the date such payments are due. In the event of failure to make payment when due under the License Agreement, PROPHESEE shall be entitled, without prejudice to its other rights and remedies, to terminate the License Agreement with neither liability nor compensation due to the LICENSEE.
5.5. Taxes. All customs and excise duties, import and/or export duties and other taxes, tariffs and surcharges of any nature whatsoever now or hereafter levied or imposed in any country or territory, either directly or indirectly, in respect of the License and supply of Support Services shall be borne by the LICENSEE and are payable in addition to the compensation as above.
5.6. Verification of quantities. LICENSEE will keep for a period of at least four (4) years all records needed to count, compute, review and verify the Royalty Fee or the Substitution Fee due to PROPHESEE under this Agreement.
Upon thirty (30) days prior written notice to LICENSEE, and no more frequently than once in any twelve (12) month period, PROPHESEE shall have the right, at its own costs and expenses, to appoint a mutually agreeable, independent and internationally recognized firm (the “Auditor”) to audit, upon prior appointment between the Parties during normal business hours of LICENSEE, whatever LICENSEE’s records the auditor might require to verify the calculation of the Royalty Fee or Substitution Fee due to PROPHESEE under this Agreement.
Should any such audit reveal that LICENSEE provided PROPHESEE with inaccurate information regarding licenses granted on the Device Software and/or Device sales quantities resulting in an underpayment of the Royalty Fee or Substitution Fee owed for the period covered by such audit, LICENSEE shall immediately pay to PROPHESEE the amount of such underpayment along with a late payment penalty the computing rules of which are detailed in second paragraph of Section 5.4 here above.
In addition, should any such audit reveal an aggregate underpayment of the Royalty Fee or Substitution Fee owed by LICENSEE for the period covered by such audit, LICENSEE shall reimburse PROPHESEE for the fees actually paid by PROPHESEE to the Auditor for such audit.
6- PROTECTION, SECURITY AND CONFIDENTIALITY
6.1 LICENSEE shall keep the source code of METAVISION® SDK PRO’s Proprietary Libraries (“Secured IP”) confidential and not disclose to any third person or employees except to Developers. The LICENSEE shall have as of the Effective Date of the License Agreement, and shall maintain thereafter, with each of its Developers, prior to their access to any Secured IP, a written, signed agreement legally sufficient and effective to enable the LICENSEE and each such Developers to comply with all the provisions of the License Agreement, and specifically this Section.
6.2 LICENSEE shall not and shall not permit anyone else than the Developers to use, reproduce, duplicate the Secured IP for Development purpose. Licensee shall promptly notify PROPHESEE of any unauthorized access to or any unauthorized use or disclosure of Secured IP.
6.3. LICENSEE shall take the following precautions with respect to METAVISION® SDK PRO licensed under this Agreement:
- for any Secure IP that is granted access to LICENSEE by PROPHESEE: i) access, download and use the Secure IP only on a secured computer system where access to METAVISION® SDK PRO shall be controlled by password identification protection software; and ii) forbid any further upload of the Secure IP on a cloud system or server that is not under the control, directly managed or operated by the LICENSEE and comply with the following security system information requirements;
- assign a manager or security administrator to (i) control access to the Secured IP; (ii) keep and maintain a written log of each Developer who has access to Secure IP, (iii) maintain records of the number and location of all copies of METAVISION® SDK PRO and (iv) issue and control the passwords reliability for access to METAVISION® SDK PRO;
- reproduce and include the copyright notices and any other legend on all copies, modifications, or portions of METAVISION® SDK PRO merged into any other Device Software and Device; no such copyright notices, legend, or other marking on or in any materials distributed under the License shall be tampered with or removed from any licensed item.
- Remote access to the Secured IP stored on LICENSEE servers shall not permit the downloading or copying of the Secured IP at a remote location.
- LICENSEE will provide PROPHESEE with information that is reasonably requested by PROPHESEE concerning the use and protection of the Secured IP hereunder.
6.4 LICENSEE acknowledges that PROPHESEE has made substantial investment in the development of METAVISION® and that the Secured IP and all parts thereof are of utmost confidential and importance to PROPHESEE. LICENSEE agrees that, in the event PROPHESEE is required to bring an action to enforce the provisions of this Agreement, the damages to PROPHESEE for improper disclosure of the Secured IP or any portion thereof are irreparable, and PROPHESEE is entitled to equitable relief, including but not limited to an injunction and a preliminary injunction, in addition to other relief.
- REPRESENTATIONS AND WARRANTIES
7.1. No representation nor warranties by PROPHESEE attached to METAVISION® SDK License. THE Proprietary Libraries AND DOCUMENTATION ARE PROVIDED TO LICENSEE UNDER THE METAVISION® SDK License ON AN “AS IS” BASIS WITH ALL FAULTS AND DEFAULTS, WITHOUT WARRANTY OF ANY KIND, EITHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 PROPHESEE’s representations and warranties attached to METAVISION® SDK PRO License.
7.2.1 PROPHESEE hereby represents and warrants as follows: (i) it has all necessary rights, powers and authority to enter into the License Agreement and to perform its obligations under this agreement; (ii) it is the sole and exclusive owner of the Proprietary Libraries, or has all rights to the Proprietary Libraries necessary to grant them to LICENSEE in accordance with the License Agreement; (iii) it has not received notice of or otherwise is not aware of any action, claim, or threat of claim that the Proprietary Libraries or any portion thereof infringes or misappropriates any IPR of any third party; (iv) to the best of its knowledge as of the Effective Date none of the Proprietary Libraries infringes or misappropriates any third party’s IPR, provided that PROPHESEE’s sole liability and LICENSEE’s sole remedy for any breach of the foregoing shall be PROPHESEE’s indemnification obligation set forth in Section 8.
7.2.2 THE LIMITED WARRANTIES PROVIDED ABOVE IN SECTIONS 4.1 AND 7.2.1 ARE EXCLUSIVE AND PROPHESEE OTHERWISE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, WHETHER ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, ERROR FREE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.2.3 IT IS UNDERSTOOD AND AGREED THAT PROPHESEE DISCLAIMS ALL WARRANTIES WITH REGARD TO ANY DERIVATIVE WORKS, DEVICE SOFTWARE, ANY THIRD-PARTY SOFTWARE AND DEVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL PROPHESEE BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL OR FOR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE DERIVATIVE WORKS, DEVICE SOFTWARE, THIRD PARTY SOFTWARE AND THE DEVICE.
7.3. LICENSEE’s representations and warranties. LICENSEE hereby represents and warrants as follows: (i) it has all necessary rights, powers and authority entering in the License Agreement and to perform its obligations under this agreement; (ii) it is the sole and exclusive owner of the Derivative Works, Device Software and Device; (iii) it has not received notice of or otherwise is not aware of any action, claim, or threat of claim that the Derivative Works, Device Software and Device or any portion thereof infringes or misappropriates any IPR of any third party; (iv) it will not use, and shall cause End-Users not to use any part of the PROPHESEE Event-Based Vision technology in any way that will make such items subject to (a) any licensing and/or cross-licensing agreements to which LICENSEE or PROPHESEE may be a party or (b) GPL, LGPL or similar open-source software license that purports to require the distribution of or access to source codes or purports to restrict PROPHESEE’s ability to charge for further distribution.
- LIMITATION OF LIABILITIES AND INDEMNIFICATION
8.1. Limitation of liabilities with respect to METAVISION® SDK License. PROPHESEE HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, ANY AND ALL LIABILITIES FOR THE USE, COPY, MODIFICATION OF THE Proprietary Libraries AND PERFORMANCE OF ITS RIGHTS AND OBLIGATIONS UNDER THESE License T&C’s, INCLUDING BUT NOT LIMITED TO ANY LIABILITY IN CONTRACT, TORT, OR OTHERWISE, WHATEVER THE CAUSE THEREOF, LIABILITY FOR ANY LOSS OF PROFIT, BUSINESS OR GOODWILL OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE COST, DAMAGES OR EXPENSE OF ANY KIND, HOWSOEVER ARISING UNDER OR IN CONNECTION WITH METAVISION® SDK License AND THE USE, COPY OR MODIFICATION OF THE Proprietary Libraries. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LICENSE, THE MAXIMUM LIABILITY OF PROPHESEE TO LICENSEE IN AGGREGATE FOR ALL CLAIMS MADE AGAINST PROPHESEE IN CONTRACT TORT OR OTHERWISE UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS License INCLUDING CLAIM WITH RESPECT TO THIRD IP RIGHTS INFRINGEMENT SHALL NOT EXCEED 1 EURO.
8.2. Limitations of liabilities and indemnification commitment with respect to METAVISION® SDK PRO.
8.2.1. Without prejudice and subject to the limitations set forth in Section 8.2.8 below, PROPHESEE shall defend and indemnify LICENSEE against all claims that Proprietary Libraries infringe or misappropriates any IPR of a third party (each a “Claim”) and PROPHESEE agrees to pay, damages incurred by LICENSEE finally when awarded by a court of competent jurisdiction or agreed to in settlement by PROPHESEE for such Claim.
8.2.2. Notwithstanding the foregoing, PROPHESEE will have no obligation under this Section 8.2 or otherwise with respect to any Claim based on (i) any use of the infringing or misappropriating METAVISION® by LICENSEE that is not in compliance with the License Agreement; (ii) any use of any single part of METAVISION® in combination with other products, equipment, software, or data not supplied by PROPHESEE; (iii) any use of any release of any of METAVISION® at the time of incorporation into the Device Software that was not the most current Update made available to LICENSEE; (iv) PROPHESEE’s compliance with LICENSEE’s designs, requirements or specification; or (v) modifications or additions to any of part of METAVISION® not supplied by or authorized by PROPHESEE.
8.2.3. If a Claim is brought or PROPHESEE believes one may be brought, PROPHESEE shall have the option at its sole discretion and at its own expense to: (i) provide LICENSEE with a modified version of the respective part of METAVISION®, or (ii) provide LICENSEE with replacement of the respective part of METAVISION®, or (iii) procure for LICENSEE a license to continue exercising the rights in METAVISION® granted to LICENSEE under the License, to avoid the allegation of infringement while at the same time substantially maintaining compliance of METAVISION® with its technical specifications ; (iv) should any of the solutions mentioned in (i) to (iii) below be legally or economically possible, refund the amount of the Licensee Fee, Royalty Fee or Substitution Fees perceived during the last twelve months preceding the Claim.
8.2.4. With respect to each Claim, LICENSEE shall: (i) promptly notify PROPHESEE of the Claim in writing, and (ii) provide PROPHESEE with all information in LICENSEE’s possession which may be reasonably requested by PROPHESEE and cooperate in good faith with PROPHESEE in the defense and/or the negotiation of any settlement of such Claim, and (iii) give PROPHESEE the full and exclusive control over the defense and/or the negotiation of any settlement of such Claim.
8.2.5. The foregoing states the entire liability of PROPHESEE with respect to any Claim of infringement of any IPR arising from METAVISION® or any portions thereof, provided by PROPHESEE to LICENSEE under the License.
8.2.6. IN NO EVENT SHALL PROPHESEE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, IN CONNECTION WITH OR ARISING OUT OF THE LICENSE AGREEMENT, THE DEVICE SOFTWARE, THE DEVICE OR THE USE OF METAVISION® REGARDLESS OF WHETHER PROPHESEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2.7. DAMAGES EXCLUDED UNDER SECTION 8.2.6 SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTED SOFTWARE TO METAVISION®, OR LOSS OF USE OR INTERRUPTION OF BUSINESS.
8.2.8. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROPHESEE ’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH OR ARISING OUT OF THE LICENSE OF METAVISION® DURING THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED, ALL EVENT INCLUDED, THE AMOUNT ACTUALLY PAID BY LICENSEE TO PROPHESEE UNDER THE LICENSE AGREEMENT FOR THE LICENSE FEE, THE ROYALTY FEE OR SUBSTITUTION FEE DURING THE LAST TWELVE (12) MONTHS PRECEDING THE CLAIM.
- TERM AND TERMINATION
9.1. Duration. The License Agreement shall become effective upon the Effective Date and shall continue in full force for an undetermined period, unless one of the Parties terminates the License Agreement with a one (1) month prior notice.
- 2. Termination for breach. This Agreement may be terminated by either Party upon written notice to the other Party if such other Party materially breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given written notice thereof describing such breach in detail.
9.3. Effect of Termination. Upon any expiration or termination of the License Agreement, except termination for breach, LICENSEE will retain such rights and licenses to METAVISION® as reasonably required for a period of three (3) months commencing on the date of such expiration or termination to: (i) fulfill orders received by, or commitments made to End-Users, before the date of such expiration or termination; and/or (ii) sell its inventory of Device. LICENSEE shall immediately thereafter (i) discontinue use of the Proprietary Libraries, (ii) remove, delete and otherwise destroy all electronic copies of the Proprietary Libraries, and (iii) execute and deliver to PROPHESEE written certification of its compliance with all of the foregoing.
In addition, all sublicenses granted to End-User under Section 2.1 (d) and Royalty Fee or Substitution Fee associated therewith pursuant to Section 5.3 will survive any expiration or termination of the License Agreement until LICENSEE has notified PROPHESEE an interruption of all Device sales by LICENSEE and by End-Users and Device Software licenses by LICENSEE.
The termination of this Agreement shall not operate to void any liabilities that accrued prior to any such termination (including, without limitation, any obligation to pay PROPHESEE any amount that accrued prior to or after the effective date of termination).
The Parties agree that the rights and obligations of the Parties set forth in Sections 5 (with respect to Royalty Fee or Substitution Fee due at expiration or termination of this Agreement), 6, 7, 8, 9, 10 and 11 of this Agreement will survive any expiration or termination of this Agreement.
10.1 – Ethics. As a responsible and compliant company with international standards, PROPHESEE does not enter in business activities or liaise with any company infringing anti-bribery and corruption laws or regulations, including OECD Convention of 1997 and the United Nations Convention against Corruption (UNCAC) of 2003, United States Foreign Corrupt Practices Act of 1977, UK Bribery Act of 2010 and French Sapin 2 Law of 2016 and their respective amendments (collectively the “ABC Regulations”). As consequence of the foregoing, by executing the License Agreement herein, the LICENSEE solemnly declares that (i) it has not infringed any ABC Regulations; (ii) neither it, its representatives nor its executive managers have been, to the best of its knowledge, subject to civil or criminal sanctions, in France, USA, United Kingdom and in the country of the LICENSEE, for infringement of ABC Regulations; and (iii) no investigation or proceedings which could lead to such sanctions have been brought against it or against such person. LICENSEE warrants that it complies with the ABC Regulations and further warrants that it has not granted and shall not grant, directly or indirectly, any gift, present, payment, remuneration or benefit whatsoever aiming at getting or as counterpart to the License Agreement and its performance. In the event of failure to comply with this clause, PROPHESEE shall automatically have the right to terminate the License Agreement without compensation to the LICENSEE and without prejudice to any remedies PROPHESEE may claim to the LICENSEE as consequence thereof.
10.2. Personal Data. Within the frame of the License Agreement, PROPHESEE collects “personal data” as defined by the European Regulation n°2016/679 dated April 27, 2016 (hereinafter the “GDPR”) such as: name, title, business telephone, address, and email (“Business Contact Information”) of LICENSEE managers and Developers. By ORDERING METAVISION® AND BY FURTHER DOWNLOADING, INSTALLING OR OTHERWISE USING OR COPYING METAVISION®, LICENSEE INDICATE THAT LICENSEE AGREE AND CONSENT WITH SUCH COLLECTION AND PROCESSING AS FOLLOWS: PROPHESEE shall (i) process the Business Contact Information only in so far as strictly necessary for the performance of the License Agreement, (ii) restrict their transfer to third parties offering the same guarantees than those defined herein and refrain to transfer them to third parties located outside of the European Economic Area without having obtained a prior consent from LICENSEE ; (iii) return, modify and/or delete the Business Contact Information when they are no more necessary, or upon request from LICENSEE at: email@example.com, and in any case 5 years after the date of the last consent.
10.3 – Export Control. The Parties are responsible for identifying and understanding their respective responsibilities with respect to any export controls applicable to the goods, software technology and services (collectively “Items”) that may be exported or transferred under the License Agreement. Each Party warrants that it will comply with all applicable export controls, including by obtaining export licenses when required for each Item. With respect to any transfers of restricted Items from LICENSEE to PROPHESEE, LICENSEE will be the exporter of record and responsible for obtaining any export licenses required in connection therewith. In all cases, LICENSEE will communicate to PROPHESEE, at the latest at the time of export, the applicable export control classification number (ECCN) and whether the Item is subject to US export or reexport controls in order to allow PROPHESEE to comply with its obligations under this License Agreement. LICENSEE warrants that it will, over the course of the License, timely provide PROPHESEE with complete and accurate information and documentation necessary to ensure compliance with applicable export controls, such as identification of the intended End-User, end-use and country of destination of Items procured from PROPHESEE. LICENSEE shall immediately inform and warn PROPHESEE while this License Agreement remain in force in case it is listed on any sanctions lists such as but not limited to US BIS DoC entities list and commerce control list (CCL), US OFAC list, the UN entities list, the European Counsel entities list, the register of the French fiscal administration (“Registre des gels et des avoirs de la Direction Générale du Trésor Public”). PROPHESEE shall be entitled to decline to perform any aspect of this License Agreement that may result in a violation of applicable export controls. Each Party must immediately notify the other if, while this License Agreement remains in force, if they file a voluntary self-disclosure (VSD) or come under investigation by government authorities for violation of any export controls that are applicable under this Agreement. In no event shall either Party transmits, exports or reexports to the other Party an Item that is subject to the United States International Traffic in Arms Regulations or the Common Military List of the European Union, or which is exported pursuant to license exception STA to the United States Export Administration Regulations.
11.1 The License Agreement shall not be assigned, delegated or transferred by LICENSEE by contract, operation of law or otherwise without the prior written consent of PROPHESEE.
11.2 Should any part or provision of these License T&C’s be held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding and the Parties shall negotiate in good faith a substitute, valid, enforceable provision which most nearly effects the Parties intent in entering into the License Agreement.
11.3 The License Agreement is governed and construed in accordance with the laws of France, without regard to its conflict of laws provisions. Any disputes arising out of the License Agreement shall be finally resolved by the competent jurisdiction of Paris, France, without prejudice from seeking any interim or final injunctive or equitable relief by a court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the License Agreement.
11.4 The License Agreement sets forth the entire agreement and understanding between the Parties as to the subject matter of the License and merges all prior discussions and writings between them with respect to the contents of the License Agreement PROVIDED ALWAYS that nothing in the License Agreement shall prejudice or supersede the provisions of any non-disclosure agreement between the Parties made prior or concomitantly to the Effective Date hereof, which shall continue in full force and effect notwithstanding the execution of the License Agreement. However, the Parties agree that any confidential information disclosed under a non-disclosure agreement between the Parties prior to the Effective Date hereof related to the subject matter of the License Agreement shall, as of the Effective Date of the License Agreement, be treated as Confidential Information disclosed hereunder, and the terms of the License Agreement shall apply to such confidential information. No modification or alteration to the terms of the License shall have effect unless the same is agreed in writing by duly authorized representatives of the Parties.
11.5 All notices or communications to be given under the License Agreement shall be in writing and shall be deemed to be validly given by delivery thereof to its recipient if (i) delivered upon hand delivery, or (ii) by deposit in the mail of the home country of the Party, postage prepaid, by certified, registered or e-registered mail or equivalent, or (iii) by nationally recognized overnight courier service (e.g., FedEx, UPS) prepaid, all of which are addressed to the General Counsel of each Party at its address set forth above or such other address that a Party may notify the other Party from time to time. Furthermore, in the case of PROPHESEE, legal notices have to be sent in copy at the following address: firstname.lastname@example.org.
11.6. Either Party’s failure to exercise any right under the License Agreement shall not constitute a waiver of any other terms or conditions of the License Agreement with respect to any other subsequent breach, nor a waiver by such Party of its right at any time thereafter to require exact and strict compliance with the terms of the License Agreement.
11.7. LICENSEE shall not make any announcement or press release regarding the License Agreement or any terms thereof without the prior written consent of PROPHESEE.
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