License agreement

SOFTWARE LICENSE AGREEMENT

1. Definition.
   
   1. 1.1"SDK" shall mean certain software development kits developed by EPSON for the development of the Products defined herein below.
   2. 1.2"Software" shall mean certain software module contained in the SDK that shall be specified by EPSON separately.
   3. 1.3"Products" shall mean your computer software product which shall be developed by you with the SDK to be used in conjunction with EPSON label printers and will be distributed under your name.
   4. 1.4"End User" shall mean an individual or single entity that you license the Products for his personal or business purposes.
   5. 1.5"Epson" shall mean Seiko Epson Corporation, a company which is organized and exists under the laws of Japan, having a principal place of business at 6925, Tazawa, Toyoshina, Azumino-shi, Nagano, Japan.
   6. 1.6"Create" shall mean create, develop, generate, improve, modify, adapt or otherwise derive. Other forms of the word "Create" (e.g., Created, Creation, etc.) shall have substantially the same meaning as required by the context.
   7. 1.7"Confidential Information" means, with respect a particular party, any and all information, data, show-how and know-how relating to its businesses, affairs, designs, manufacturing techniques, sales strategies, products or services, and disclosed by such party to the other party during the term of this Agreement; provided that, information shall be Confidential Information only if it is marked as confidential (or the equivalent) at the time of disclosure or, if the material is not in written form (including, but not limited to, being orally disclosed), it is treated and identified as confidential at the time of disclosure and is designated as confidential in a written memorandum sent to the recipient within thirty (30) days of disclosure, summarizing the confidential information sufficiently for identification.
   8. 1.8"Intellectual Property Rights" shall mean (a) any patent and utility model in any country or jurisdiction, including, without limitation, any substitutions, extensions, reissues, reexaminations, renewals, supplementary protection certificates and inventors' certificates and all foreign equivalents thereof, (b) any patent and utility model application filed in any jurisdiction, including, without limitation, any provisionals, divisionals, continuations, continuations-in-part or foreign equivalents thereof, and (c) any copyrights, trade secrets, moral rights, author's rights, contract and licensing rights, and other intellectual property rights, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under any law(s) of any country or jurisdiction.
   9. 1.9"Technology" shall mean any discovery, invention, development, technical information, data, knowledge, technique, process, demonstration, system, formula, result of experiment, design, statistic, record, know-how, information, material or substance and all Intellectual Property Rights relating to any of the foregoing, whether the subject of a patent, or patent application, or not.
2. Scope
   This Agreement is a legal agreement and constitutes the entire understanding between you (developer, an individual or single entity, referred to hereinafter as "you") and EPSON regarding the SDK.
3. Copyright and Other Rights.
   As between the parties, EPSON retains any and all ownership rights, title and interest in the SDK including any and all copies thereof. This Agreement does not constitute a sale of the SDK or any portion thereof. The SDK is protected under Japanese Copyright Laws and International Copyright Treaties, as well as other laws and treaties for any Intellectual Property Rights. Except for the rights and licenses expressly granted to you hereunder, you shall not be granted, expressly, impliedly or by estoppel, any rights under any Intellectual Property Rights in and to the SDK or any such third party software provided hereunder.
4. License Grants.
   
   1. 4.1Subject to and conditional upon the terms of this Agreement, EPSON hereby grants to you a non-exclusive, non-sublicensable (except in accordance with Section 4.1(b)), personal and non-transferable, royalty-free limited license and right as follows:
      (a) to use the SDK for the development of the Products to be used in conjunction with EPSON label printers; and (b) to reproduce and distribute the Software as incorporated or bundled with the Products in machine readable form ("Object Code") only to your End User. In addition to the terms and conditions in this Agreement, you shall use the SDK subject to the instructions from EPSON that may be made separately. Any use of the SDK other than the purpose stated in this Section 4.1 is considered a breach of this Agreement. Any inconsistent use with EPSON's instruction is also considered a breach of this Agreement.
   2. 4.2The license granted by EPSON to you shall be limited to the extent as set forth in Section 4.1 hereof and you shall not be granted any right, including, but not limited to, the right to sub-license, use, reproduce, transmit, distribute, amend, disassemble, reverse engineering or otherwise dispose of the SDK in any manner other than allowed herein. You shall enter into an end user license agreement with End User that prohibiting End User from using, reproducing, transmitting, distributing, amending, disassembling, reverse engineering or otherwise disposing of the Software in any manner not allowed herein and have End User comply with the end user license agreement.
5. Restrictions.
   Notwithstanding anything to the contrary herein, you shall not: (a) use the SDK for any purpose except those expressly permitted hereunder; (b) disassemble, de-compile or otherwise reverse engineer the SDK downloaded or delivered in the Object Code in order to discover or otherwise obtain human-readable form thereof ("Source Code"); (c) disclose or distribute to third parties the SDK downloaded or delivered in Source Code; (d) assign, rent, lease, lend and re-distribute the SDK (i) on a stand-alone basis, and/or (ii) by writing the Software into any products other than your products integrating the Products; (e) remove or change any legend or notice of copyright or other intellectual property right set forth in the SDK as downloaded (or delivered); or (f) remove or change any legend or notice of any logo, trade name, and trademark set forth in the SDK as downloaded (or delivered). You shall reproduce any copyright notice on every copy of the Software as affixed or appeared on the master copy of the Software.
6. Intellectual Property Right.
   
   1. 6.1You agree that any Intellectual Property Rights in and/or relating to the SDK shall be sole property of Epson.
   2. 6.2You shall not remove or change any notice of such copyright or Intellectual Property Right of the SDK. You shall reproduce any copyright notice on every copy of the Software as affixed or appeared on the master copy of the Software.
   3. 6.3Intellectual Property Right(s) of the Technology Created by you based on Epson's Confidential Information shall be owned by Epson. Epson hereby grants to you a non-exclusive, non-transferable, royalty-free license to reproduce and distribute the Software containing such Intellectual Property Right(s) of the Technology Created by you based on Epson's Confidential Information as incorporated with the Products in the Object Code only for use with Products by your End Users during the term of this Agreement.
   4. 6.4You shall obtain all assignments and agreements necessary from your respective employees and/or agents to the extent necessary to achieve ownership of the Intellectual Property Right(s) as set forth in this Section 6.3. To the extent any further action or documents are reasonably necessary to obtain, register, perfect, and enforce Intellectual Property Rights in and to the Technology in accordance with this Agreement, you shall perform such acts and deliver such documents promptly upon EPSON's written request.
   5. 6.5Any Technology Created by you not based on EPSON's Confidential Information shall be owned by you. Notwithstanding the foregoing, EPSON may terminate this Agreement if you enforce any Intellectual Property Rights acquired pursuant to this Section 6.5 ("Your Intellectual Property Rights") against EPSON, EPSON's affiliates, any third party licensee of EPSON, their subcontractor or their End User under any claims or actions, based on making, using, modifying, reproducing, distributing, selling, or otherwise commercializing (i) the SDK and/or (ii) any software or products developed by using the SDK. If you assign Your Intellectual Property Rights to any third party, EPSON may also terminate this Agreement if the third party enforces Your Intellectual Property Rights against EPSON, EPSON's affiliates, any third party licensee of EPSON, their subcontractor, or their End User under any claims or actions, based on making, using, modifying, reproducing, distributing, selling, or otherwise commercializing (i) the SDK and/or (ii) any software or products developed by using the SDK.
7. Updated Version.
   
   1. 7.1Epson may, in its sole discretion, authorize you by notice to use any updated or extended version of the SDK pursuant to the terms of this Agreement. In the event Epson makes a new version of the SDK available pursuant to the terms of this Agreement, said new version of the SDK will be treated as the SDK for all purposes hereunder. Epson also reserves the right to license any new version of the SDK separately and subject to different terms and conditions.
   2. 7.2In the event Epson makes a new version of the SDK available pursuant to the terms of this Agreement, upon request from Epson, you agree that you shall use a new version of the SDK for development of new versions of the Products.
8. Warranty Disclaimers.
   THE SDK IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. EPSON DOES NOT MAKE ANY REPRESENTATION OR WARRANTIES WITH RESPECT TO THE ACCURACY OR RELIABILITY OF THE USE OF SDK (INCLUDING THE SOFTWARE AND THE PRODUCTS) OR THE RESULTS OF THE USE OF THE SDK (INCLUDING THE SOFTWARE AND THE PRODUCTS), AND THE USE OF THE SDK (INCLUDING THE SOFTWARE AND THE PRODUCTS) IS AT YOUR OWN RISK. EPSON DOES NOT WARRANT THAT THE SDK (INCLUDING THE SOFTWARE AND THE PRODUCTS) WILL MEET YOUR REQUIREMENTS, OPERATE ERROR FREE, WITHOUT INTERRUPTION, OR IN COMBINATION WITH OTHER SOFTWARE, OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE. Epson shall not be responsible or liable for any claims related to the Products or the use of the SDK.
9. Consequential Damages Waiver.
   IN NO EVENT SHALL EPSON BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR MISREPRESENTATION FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion of damages, so the above exclusion may not apply to you.
10. Limitation of Liability.
    EPSON'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR MISREPRESENTATION FOR ANY DAMAGES SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO EPSON TO USE THE SDK HEREUNDER. Some jurisdictions do not allow the limitation of damages, so the above limitation may not apply to you.
11. No Indemnification.
    Epson has no obligation to you to indemnify, defend or hold harmless you from and against any claim. You, however, agree to notify Epson promptly of any such claim. You agree to indemnify, defend and hold harmless Epson from any and all claims, damages, losses, liabilities, costs and expense (including reasonable attorneys’ fees) arising out of or in connection with your use of the SDK and/or distribution of the Software and/or the Products, or any claim relating to the Software and/or the Products including, but not limited to any claim relating to infringements of any third party's Intellectual Property Rights.
12. Confidentiality.
    
    1. 12.1For the purpose of this Agreement, it is contemplated that Epson may be disclosing certain Confidential Information to you in conjunction with the SDK and the use of Software in Products.
    2. 12.2 You acknowledge that the Confidential Information is claimed to be a valuable, special, and unique asset of Epson. Accordingly, you agree that you shall:
       (a)maintain the Confidential Information in confidence; (b)not use any such Confidential Information received from Epson except for the purpose hereof; (c)hdisclose such Confidential Information received from Epson only to its employees that have a need to know such Confidential Information in order to fulfill the purpose hereof and have agreed in writing to be bound by terms and conditions no less restrictive than those described in this Agreement; and (d)not disclose any portion of the Confidential Information received from Epson to any third party without the prior written consent of Epson, even if such third party is under similar restriction on disclosure with Epson.
    3. 12.3You agree to use the same degree of care to protect the confidentiality of all Confidential Information it receives as it uses to protect its own confidential and proprietary information which it does not wish to have published or disseminated. However, in no event shall you use less than a reasonable degree of care to protect the Confidential Information received from Epson. You shall not disassemble, de-compile or otherwise reverse engineer any software product of Epson and, to the extent any such activity may be permitted, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement.
    4. 12.4 Confidential Information shall not include, and no obligation is imposed upon you with respect to, information that:
       (a)has been, is now, or later becomes publicly available not through your fault (b)has been, is now, or later becomes rightfully learned by you from a third party who is not under restriction or duty imposed by Epson; (c)has been, is now, or later is furnished to third parties by Epson, if such disclosure is, or has been, made to third parties without similar restriction, duty or limitation of use; (d)was known to you prior to the date it received such Confidential Information from Epson; or, (e)has been, is now, or later is independently developed by you without use of or resort to such Confidential Information, and can be so proven by written records.
    5. 12.5Notwithstanding the foregoing, the Source Code included in the SDK, if any, shall be treated as Confidential Information for an indefinite period.
    6. 12.6You may disclose Epson's Confidential Information if such disclosure is in response to a valid court or other governmental action, or otherwise required by law (including applicable securities laws and regulations); provided that, you shall provide Epson with prompt written notice thereof and cooperate with Epson in any efforts to seek confidential treatment of such disclosure.
    7. 12.7All Confidential Information disclosed under this Agreement shall remain the property of Epson. At the Epson's request, all Confidential Information received by you in tangible form shall be promptly returned or destroyed. If such Confidential Information is destroyed in accordance with this Section 12.7, you shall certify such destruction in writing to Epson.
    8. 12.8You shall return or destroy the master copy containing the SDK and any copy of the Software to Epson upon the termination or expiration of this Agreement, or if so required by Epson during the term of this Agreement. If you destroy the master copy of the SDK or the reproduction of Software, such destruction shall be certified by you with signature of your duly authorized representative.
13. Term.
    This Agreement shall be effective upon completing the download of the SDK or installing the SDK to your computer, which occur earlier, and shall continue in effect for one (1) year period. Following the expiration of this Agreement, this Agreement shall be automatically renewed for additional one (1) year period under the same terms and conditions stated in this Agreement unless otherwise notified by either party within thirty (30) days prior to the anniversary date of the original or any renewal term of this Agreement.
14. Termination.
    Epson may terminate this Agreement at any time with immediate effect and without any notice to you if you are in material breach of this Agreement. You may terminate this Agreement at any time by uninstalling and disposing of the SDK and any and all copies thereof.
15. Upon termination or expiration.
    
    1. 15.1Upon termination or expiration of this Agreement, all licenses granted hereunder shall automatically and simultaneously terminate, and you shall stop all use of the SDK. You shall return or destroy the SDK and any and all copies thereof immediately.
    2. 15.2Termination or expiration of this Agreement will not affect any preexisting End User licenses to the Products.
    3. 15.3Notwithstanding the foregoing, subsequent to the termination or expiration of this Agreement for any reason other than termination by Epson under Section 14, you shall have the right to continue to reproduce and distribute the Software for the purpose of the maintenance and support to the Products licensed to the End User at the time of such termination or expiration and shall have the right to continue to distribute the Products reproduced already as the stock at the time of such termination or expiration. The terms and conditions of this Agreement shall apply to such continued reproduction and distribution.
16. Survival.
    
    1. 16.1The following sections of this Agreement shall survive any termination or expiration of this Agreement.
       Sections 3, 6, 8, 9, 10, 11, 12, 15, 17, 18, 19, 20 and 23
    2. 16.2Any termination of this Agreement shall not relieve either party from its obligations which had arisen prior to the termination.
17. Export Control Laws Compliance.
    You agree not to transfer, export or re-export the SDK and any data or information which you obtained from Epson or use the SDK without a proper license and procedures under Japanese law, restrictions and regulations, or the laws of the jurisdiction in which the SDK is obtained, including, but not limited to the Foreign Exchange and Foreign Trade Control Law of Japan and the export control regulations of any foreign nations, including the U.S. Export Administration Regulations. The SDK may be also subject to the U.S. Export Administration Regulations. Under the applicable laws, you shall not export and re-export the SDK to the nations prohibited by U.S. Government and you shall not download the SDK from such nations as well. You are not permitted to provide the SDK to the person whose nationality is subject to the export restriction by U.S. Government.
18. No Assignment.
    Other than expressly provided herein, you shall NOT assign or otherwise transfer any rights and obligations hereunder, or this Agreement, to any third party without the prior written consent of Epson.
19. Governing Law.
    This Agreement shall be construed and governed by the laws of Japan, without reference to conflict of law provisions.
20. Injunctive Relief and Arbitration
    You acknowledge and agree that any breach of its obligations set forth in Sections 4.2, 5 and 12 will cause irreparable harm to Epson and shall entitle Epson to seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies for such breach. In the event of any other dispute between the parties in connection with the matters related to the provisions of this Agreement which cannot be resolved through mutual negotiation, such dispute shall be subject to arbitration in Tokyo, Japan in accordance with the rules of the Japan Commercial Arbitration Association; notwithstanding above, Epson may require injunctive relief or any other remedies to a court in jurisdiction in case of that Epson suffers or is likely to suffer any loss or damages caused by your breach of this Agreement.
21. Invalidity.
    If any provision of this Agreement is determined to be invalid under applicable law, such provision shall, to that extent, be deemed omitted. The invalidity of any portion of this Agreement shall not render this Agreement or any other portion hereof invalid.
22. Entire Agreement.
    This Agreement constitutes the entire understanding and agreement between you and Epson relating to the subject matter hereof, and supersedes any previous communications, representations, or agreements, whether oral or written, between you and Epson in respect of the subject matter hereof.
23. U.S. Government End Users.
    If you are acquiring the SDK on behalf of any unit or agency of the United States Government, the following provisions apply. The Government agrees: (i) if the SDK is supplied to the Department of Defense (DoD), the SDK is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the SDK and its documentation as that term is defined in Clause 252.227-7013(c)(1) of the DFARS; and (ii) if the SDK is supplied to any unit or agency of the United States Government other than DoD, the Government's rights in the SDK and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause 18-52.227-86(d) of the NASA supplement to the FAR.