NEURALA TERMS AND CONDITIONS
FOR NEURALA PRODUCTS PURCHASED FOR USE WITH CERTAIN SONY PROPRIETARY INTELLIGENT VISION SENSORS WITH EDGE PROCESSING
These NEURALA TERMS AND CONDITIONS (the “Terms”) are between Neurala, Inc., a Delaware corporation, (“Neurala”) and the entity that purchases access to the Neurala Products pursuant to an Order Form as defined in Section 1 below (“Customer”). The Terms, combined with all Order Forms that incorporate the Terms, and any attachments, schedules or other incorporated documents, are collectively referred to as the “Agreement” and govern the relationship between the parties with respect to any Neurala Products ordered in any Order Form. The Neurala Products purchased are integrated with certain Sony proprietary intelligent vision sensor with edge processing technology (e.g., the IMX500) (the “Sony Products”). The Sony Products combined with the Neurala Products make up the “Integrated System”. These Terms govern Customer’s use of only the Neurala Products and not the Integrated System as a whole or any other component of the Integrated System. Each of Neurala and Customer are referred to as a “party” and collectively as the “parties”.
In consideration of the mutual covenants and conditions set forth below, Neurala and Customer agree as follows:
1. DEFINITIONS. As used in this Agreement:
“Affiliate” means an entity that directly or indirectly, through one or more intermediaries: (a) owns more than 50% of the outstanding voting securities of a party or (b) is controlled by a party, in each case where the term “control” means possession of power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise.
“Agreement” has the meaning provided in the preamble.
“Brain” means a data file containing a unique set of numerical inputs that drive application programs and that is: (a) identified by Neurala as a Brain and (b) trained using the Products and Source Data for the detection of Objects.
“Brain Builder Cloud” means versions of Neurala’s Brain Builder for AITRIOS (Cloud) made available to Customer pursuant to any Order Form, to be used solely as part of the Integrated System.
“Confidential Information” means all written or oral information, disclosed by either Party to the other that has been identified as confidential or that by its nature ought reasonably to be considered confidential. Information relating to the Products and the Documentation is the Confidential Information of Neurala.
“Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Products, which materials are designed to facilitate use of the Products and are provided by Neurala to Customer pursuant to the terms of this Agreement.
“Intellectual Property Rights” mean all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and re-examinations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
“Licensed Software” means object code versions of Neurala’s Brain Builder for AITRIOS (On-Premise) or Inspector for AITRIOS (On-Premise) that are licensed by Customer pursuant to any Order Form solely as part of the Integrated System.
“Licensing Restrictions” mean the limitations on use for any Product as set forth in the applicable Order Form (e.g., maximum number of Authorized Users, length of term).
“Object Tag” means any file name, folder name or indicated area of interest on or around a visible object, item, or other physical trait identified by Customer.
“Object Tag Data” means any data generated by Object Tags identified by Customer, with the understanding that the Object Tag Data does not include any Source Data.
“Object” means any visible object, item or other physical trait that is the subject of an Object Tag.
“Order Form” means the ordering document between Sony or a reseller designated by Sony and the Customer pursuant to which Customer agrees to license or purchase access to the identified Products as made available as part of the Integrated Systems, with the understanding that Neurala is an intended third party beneficiary of all such Order Forms.
“Outputs” mean any reports, scripts, responses or other outputs that are generated through Customer’s use of the Products including, but not limited to, reports, exports of training data annotated using the Products.
“Product(s)” mean the Licensed Software and / or Brain Builder Cloud, in each case solely as purchased in any Order Form.
“Source Data” means text, graphic, audio, visual or audio-visual data or content to be tagged using the Products, (including any Licensed Software) including any resultant derivatives thereof (such as the training masks) as such is provided by Customer.
2. PRODUCTS.
2.1 License to Licensed Software. If Customer has licensed the Licensed Software pursuant to an Order Form, subject to the terms and conditions of this Agreement, including the Licensing Restrictions, Neurala grants Customer a non-exclusive, non-transferable license to (without a right to sub-license) copy, use, install and operate the Licensed Software ordered in any Order Form solely: (i) as part of the Integrated System, (ii) for Customer’s internal use and (iii) in accordance with the Documentation.
2.2 Terms applicable Solely to the Brain Builder Cloud: (a) Access to Brain Builder Cloud. If Customer has purchased access to Brain Builder Cloud pursuant to an Order Form, subject to the terms and conditions of this Agreement, including the Licensing Restrictions, Neurala grants Customer a non-exclusive, non-transferable right to access and use such components of Brain Builder Cloud ordered in any Order Form solely: (i) as part of the Integrated System, (ii) for Customer’s internal use and (iii) in accordance with the Documentation.
(b) Source Data. Unless otherwise specified in the applicable Order Form, Customer will make available at no charge to Neurala all Source Data required by Neurala for the performance of the Brain Builder Cloud. Customer hereby grants to Neurala: (a) a worldwide, non-exclusive, royalty-free license to use the Source Data and Object Tag Data during the Term in connection with the Brain Builder Cloud and (b) a right to use the Source Data (so long as Neurala does not identify the Source Data with Customer or any individual) for the purposes of improving our products, software and services. Customer will obtain all third-party licenses, consents and permissions needed for Neurala to use the Source Data as contemplated herein.
2.3. Restrictions. Except as expressly permitted herein, Customer will not (a) copy or duplicate the Products; (b) decompile, disassemble, reverse engineer or attempt to obtain or perceive the source code from which any component of the Products is compiled or interpreted, (c) modify the Products, the Documentation or create any derivative product from any of the foregoing, except with the prior written consent of Neurala; (d) use the Products to build a similar or competitive product; (e) use any device or software that damages, interferes with or disrupts the Products; (f) use the Products in a manner inconsistent with the Documentation or the Agreement; (g) use the Products for the benefit of any third party including in connection with a managed service, software-as-a-service, infrastructure-as-a-service model or any other “as-a-service model, and (g) provide any third party with access or use the Products for the benefit of such third party. Customer will ensure that its use of the Products and the Documentation complies with applicable laws, statutes, regulations or rules promulgated by governing authorities having jurisdiction.
2.4 Reservation of Rights. The Products, Documentation and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Neurala and/ or its suppliers. All rights in and to the Products not expressly granted to Customer in this Agreement are reserved by Neurala and its suppliers.
2.5 Feedback. Any comments or materials that Customer provides or sends to Neurala, such as questions, comments, suggestions, including suggestions for improvements, enhancements or modifications, or the like regarding the Products (collectively “Feedback”) will be deemed to be non-confidential. Neurala has no obligation of any kind with respect to any Feedback and will be free to reproduce, use, disclose, exhibit, display, transform, create derivative works of or distribute the Feedback. Further, Neurala is free to use any ideas, concepts, know-how or techniques contained in any Feedback for any purpose whatsoever, including developing, manufacturing and marketing products and services incorporating such Feedback, and without any obligation of paying Customer for such use.2.6 Product Analytics. Neurala may compile statistical and other information related to the performance, operation and use of the Products, including the right to use Object Tag Data on an anonymized basis (e.g., without identifying it with any specific customer or any individual user) for the purpose of improving our products, software and services subject to these Terms and the Neurala privacy policy (https://www.neurala.com/legal/privacy). To the extent that any such data includes data that may qualify as personal data or personal information under applicable law, Customer represents and warrants that it has provided all necessary notices and obtained all necessary consents to provide such information to Neurala for the purposes described this Section 2.6.
3. Customer Responsibilities.
3.1 Inputs and Outputs. Customer acknowledges and agrees that: (a) the Products are designed to recognize certain Objects designated by Customer based on Source Data uploaded by Customer, and that such recognition is developed based on Customer’s placement or use of Object Tags as well as Customer’s actions, instructions and other inputs provided by Customer (collectively, “Inputs”); (b) any Outputs are wholly dependent upon Customer’s Inputs; and (c) the ability of the Products to recognize Objects, and provide Outputs is dependent upon the quality, video and/or image resolution, lighting, weather and volume of the Source Data provided by Customer. Neurala makes no warranty or guarantee regarding the Outputs, including the accuracy or reliability thereof.
3.2 Use of the Integrated Systems. Customer represents and warrants that, unless expressly approved by Neurala, Customer will not use the Products as integrated with the Integrated System for any mission-critical application, including in any life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation
hardened components; and Enhanced 911 or the E911 emergency calling system.
4. COMPLIANCE WITH LAWS. Customer will at all times comply with all applicable laws and regulations, including any export control laws.
5. FEES AND PAYMENT.
5.1 Fees. Customer will pay the fees for the Integrated Systems as are set forth on each Order Form in accordance with the terms set forth therein (“Fees”). All Fees are non-refundable.
6. CONFIDENTIALITY
6.1 Protection of Confidential Information. During this Agreement, each Party will have access to certain Confidential Information of the other Party. Except as may otherwise be permitted in this Agreement, each Party agrees: (a) not to disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors on a strict need to know basis and subject to a written duty of confidence, (b) to use the Confidential Information strictly for the performance or receipt of this Agreement, and (c) to use commercially reasonable endeavors to protect the confidentiality of the other Party’s Confidential Information.
6.2 Exceptions. The provisions of Section 6.1 will not apply to Confidential Information that (a) is or becomes publicly available through no fault of the recipient, (b) is already in the recipient’s possession at the time of its disclosure without any duty of confidence, or (c) is independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent required: (1) to comply with the order of a court or other governmental body, or as necessary to comply with applicable law, or (2) to establish or preserve a Party’s rights under this Agreement.
7. DISCLAIMER OR WARRANTIES.
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND DOCUMENTATION ARE PROVIDED “AS IS,” AND “WITH ALL FAULTS”. NEURALA MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. NEURALA DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCTS IS WITH CUSTOMER.
8. DISCLAIMER OF DAMAGES; LIMITATIONS ON LIABILITY.
8.1 IN NO EVENT WILL NEURALA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF VALUATION, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL NEURALA BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR SUBSTITUTE PRODUCTS.
8.2 NEURALA’S MAXIMUM AGGREGATE LIABILITY UNDER ANY ORDER FORM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY NEURALA FROM SONY IN CONNECTION WITH UNDER SUCH ORDER FORM DURING THE THREE (3) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES STATE THAT ANY AMOUNT AWARDED BY A COURT OR AGREED UPON IN SETTLEMENT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATION, OR A CLAIM FOR BREACH OF CONFIDENTIALITY, OR ANY MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, WILL BE CONSIDERED TO BE A DIRECT DAMAGE NO MATTER HOW DENOMINATED BY THE COURT.
9. INDEMNIFICATION.
9.1 Neurala Indemnity. Neurala will indemnify, defend and hold harmless Customer, its directors, officers, employees and representatives (each a “Customer Indemnified Party”) from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of arising out of any third party claim alleging that the Products infringe any U.S. patent or copyright.
9.2 Exclusions. Section 9.1 will not apply if the alleged claim arises, in whole or in part, from (a) a use or modification of the Products by Customer in a manner outside the scope of any right granted or in breach of this Agreement, (b) a combination, operation or use of the Products with other software, hardware or technology not provided or authorized by Neurala, if the claim would not have arisen but for the combination, operation or use, or (c) the Source Data (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
9.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Neurala, its directors, officers, employees and representatives (each a “Neurala Indemnified Party”), from and against any and all Losses arising out of a breach of (a) Section 2.1 (Restrictions), (b) Section 3 (Customer Responsibilities), (c) Section 6 (Confidentiality) and (d) any Customer Indemnity Responsibility.
9.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the
indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent
9.5 THE PROVISIONS OF THIS SECTION 9 STATE NEURALA’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT ANY PRODUCT INFRINGES A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order Form entered into by the parties that incorporate these Terms and will continue for as long as any Order Form is in effect.
10.2 Order Form Termination. Each Order Form will commence on the Order Form Effective Date and continue for the Order Form Initial Term and any Renewal Terms, as set forth in the applicable Order Form. Either party may terminate any Order Form by providing written notice to the other party no less than ninety (90) days prior to the end of the then current term of the Order Form.
10.3 Termination for Material Breach. Either party may terminate this Agreement or any Order Form effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement (or the applicable Order Form) and does not substantially cure the breach within thirty (30) days after receiving written notice. Termination of the Agreement will automatically cause the termination of all Order Forms.
10.4 Effects of Termination.
(a) Payment; Access to Products. Upon termination or expiration of an Order Form for any reason, any amounts owed to Neurala under the Order Form will be immediately due and payable, and all rights granted pursuant to the Order Form, and all Customer use of the Products, will immediately cease.
(b) Survival. The provisions of this Agreement that, by their nature and content, should survive the termination or expiration of this Agreement will so survive, including Sections 1, 2.3-2.6, 3, 5-9, 10.4 and 11.
11. GENERAL
11.1 Assignment. This Agreement cannot be assigned by either Customer or Neurala without the prior written consent of the other; provided, however, that Neurala may assign this Agreement to any person or entity that is an Affiliate, or acquires by sale, merger or otherwise, all or substantially all of its assets, stock or business that relate to this Agreement. Any attempted assignment or delegation in violation of this Section 11.1 will be null, void and of no effect.
11.2 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Order Form . Either party may change its address by giving notice of the new address to the other party.
11.3 Governing Law; Disputes. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in Boston, Massachusetts and both parties hereby submit to the jurisdiction and venue of such courts.
11.4 Remedies. Customer acknowledges that any actual or threatened breach of Section 2 will constitute immediate, irreparable harm to Neurala for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
11.5 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.6 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
11.7 No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement. For the avoidance of doubt, no End User will be deemed an intended third-party beneficiary.
11.8 Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
11.9 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
11.10 Entire Agreement. This Agreement, along with the applicable Order Forms, amendments and other documents that are incorporated herein, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.