END-USER LICENSE AGREEMENT FOR PRODUCTS MANUFACTURED AND/OR SOLD BY BKIN TECHNOLOGIES LTD.
Form: BT053 Version: 26-Jun-18
This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or, if purchased or otherwise acquired by or for an entity, an entity) and BKIN Technologies Ltd., (“BKIN Technologies”) for the BKIN Technologies equipment and/or software manufactured and/or sold by BKIN Technologies that accompanies this EULA, which may include associated media, printed materials, “online” or electronic documentation, proprietary protocols and databases, and Internet-based services (“Equipment” and/or “Software”). An amendment or addendum to this EULA may accompany the Equipment and/or Software. A copy of this EULA is available to you on the BKIN Technologies website (www.bkintechnologies.com) and available from BKIN Technologies if requested in writing. In the event of any errors, omissions or other discrepancies between this EULA, and any amendments or addendums accompanying this EULA, and the EULA made available by BKIN Technologies on its website, the terms of the latter shall control.
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING OR IN ANY WAY USING BKIN TECHNOLOGIES EQUIPMENT AND/OR SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL OR IN ANY WAY USE THE EQUIPMENT AND/OR SOFTWARE; YOU MUST RETURN THE EQUIPMENT AND/OR SOFTWARE TO BKIN TECHNOLOGIES WITHIN TEN (10) DAYS. YOU MAY BE ELIGIBLE FOR A REFUND ACCORDING TO THE TERMS OF YOUR PURCHASE AGREEMENT.
1. LICENSE: BKIN Technologies grants you a single non-transferable and non-exclusive license to use the Equipment and/or Software subject to all the terms and conditions of this EULA. All rights not specifically granted to you by this EULA shall remain with BKIN Technologies. No rights are granted to you to sublicense, rent or market the Equipment and/or Software. No rights are granted to you under any patents, patent applications, trade secrets or other proprietary rights.
The Software accompanying this EULA is licensed by BKIN Technologies, but BKIN Technologies retains ownership of the Software itself, except for those parts which may be owned in whole, or in part by a third party. The rights granted under the terms of the EULA include any Software upgrades that replace and/or supplement the original Software, unless such upgrade contains a separate license. The provisions included in this EULA, including all reservations of rights and limitations of liabilities, extend to Software provided under this EULA by both BKIN Technologies and any third-party provider.
2. LICENSE RESTRICTIONS: ALL EQUIPMENT AND/OR SOFTWARE PROVIDED TO YOU UNDER THIS EULA SHALL BE USED SOLELY FOR RESEARCH PURPOSES AT YOUR INSTITUTIONAL FACILITIES ONLY. Equipment and/or Software is to be used only under your direction. You may install, use, access, display and run one copy of the Software on only a single computer, such as a workstation, except for any MDL files, SLX files and M-files in source code format provided as part of the Software, which you may install, use, access, display and run on more than one computer as defined by The MathWorks, Inc. Software License Agreement. You are not authorized to install or use the Software on a network. You shall not provide access, directly or indirectly, to the Software via the Web or any Internet application, or any file-sharing method or system unless explicitly allowed in your purchase agreement. You may not rent, lease, or loan the Equipment and/or Software, use the Equipment and/or Software for supporting third party use of the Equipment and/or Software, time share the Equipment and/or Software or provide service bureau use.
You may not in any way clone, reverse engineer, decompile, or disassemble the Equipment and/or Software, except and only to the extent that such activity is expressly permitted by this EULA and by applicable law notwithstanding this limitation. Disassembly, changes or modifications to the Equipment and/or Software not expressly approved by BKIN could void the user’s warranty and authority to operate the equipment. Any OEM equipment provided by BKIN and integrated into KINARM Labs (e.g. EyeLink by SR Research Limited) may not be disassembled from the KINARM Lab. Further BKIN does not warrant that any OEM equipment will operate independently of the KINARM Lab. You may modify any MDL files, SLX files and M-files provided as part of the Software to derive other MDL, SLX files and M-files for use with the Equipment and/or Software, however, any such derived works must be used in accordance with all terms and conditions of this EULA. You may use only the binary format of the Software provided under this EULA with the exception of any MDL files, SLX files and M-files provided as part of the Software, which may be used in source code format as defined by The MathWorks, Inc. Software License Agreement.
You may make one copy of the Software for backup purposes, but all copyright and proprietary notices in the original must be included in such copy.
3. SOFTWARE MAINTENANCE SERVICE: During any paid Maintenance Service term, BKIN Technologies shall provide service for the Software consisting of: delivering subsequent releases of the Software, if any; exerting reasonable efforts to both (a) provide, within a reasonable time, workarounds for any material programming errors in the current release of the Software that are directly attributable to BKIN Technologies, and (b) correct such errors in the next available release, provided you provide BKIN Technologies with sufficient information to identify the errors (Maintenance Service). During this same paid Maintenance Service term, you shall also be entitled to receive technical support for the current release of the Software.
The fees for Maintenance Service for the one (1) year period commencing on the delivery date specified in the original purchase invoice (“Initial Maintenance Period”) shall be included as part of software purchase price and no separate fee for this Maintenance Service is payable by you to BKIN Technologies. After the Initial Maintenance Period, you may purchase Maintenance Service from BKIN Technologies, which shall be subject to an additional fee and mutual written agreement. BKIN Technologies shall have no obligation to provide Maintenance Service to you after the Initial Maintenance Period unless it is purchased by you in accordance with the agreement. Further, BKIN Technologies shall have the right to discontinue the use of any protocols and databases licensed on an annual basis if the Maintenance Service fee for said protocols and databases is not purchased.
4. CONFIDENTIALITY AND NON-DISCLOSURE: Provisions of this Article shall survive any termination of this EULA.
(A) Equipment and/or Software
You acknowledge that all Equipment and/or Software accompanying this EULA are proprietary products of BKIN Technologies or its suppliers. All Software shall remain the property of BKIN Technologies. You will not disclose or otherwise make available to any third party the Equipment and/or Software, any modified or derived works therefrom, or information contained therein, in any form, except to your employees and users for purposes limited to and specifically related to your use of the Equipment and/or Software in accordance with this EULA. You shall take appropriate action by instruction or signed agreements with such employees and users to satisfy your obligations under this EULA. If for any reason you or your employees or users gain access to BKIN Technologies materials containing any confidential or proprietary marking, or BKIN Technologies software source code to which you do not have a right of access under a written agreement between you and BKIN Technologies, you agree to not examine, use, copy, or keep such items, but shall return them promptly to BKIN Technologies. Your obligations of confidentiality and nondisclosure shall apply to all forms of Equipment and/or Software received.
(B) Injunctive Relief
Because harm not adequately compensable might result from unauthorized disclosure of proprietary or confidential information, BKIN Technologies may seek injunctive relief if you breach your obligations of confidentiality and nondisclosure under this EULA.
5. PATENT AND COPYRIGHT: All or parts of the Equipment and/or Software may have been patented or copyrighted by BKIN Technologies or third-party providers. Patent or copyright notices have been included in the Software for protective purposes and such notices shall not be construed as causing publication of the Software.
6. CHARGES: You agree to pay all charges arising from the license of the Equipment and/or Software. In addition, you agree to pay, or reimburse BKIN Technologies for paying, all taxes (except incomes taxes) and other government charges based on or measured by the charges set forth in this EULA, or based on the Equipment and/or Software, its use, and any services provided herein, now or hereafter imposed by any governmental authority, including but not limited to Provincial or State Sales Tax, Goods and Services Tax, Harmonized Sales Tax, and Use or Gross Receipt taxes.
7. LIMITED WARRANTY: BKIN Technologies warrants that all KINARM™ products will be substantially free from defects in material and workmanship. In the event of a breach of this warranty, provided that BKIN Technologies is notified of the defects within 12 months of shipment or before the expiry of any extended warranty purchased from BKIN Technologies, BKIN Technologies will exert reasonable efforts to correct the defects in materials and/or workmanship. These efforts will include repair or replacement of the defective part at customer’s location or at BKIN Technologies, such determination at BKIN’s discretion. Customer must return any equipment for repair in its original packaging. BKIN will cover shipping costs by ground courier to and from customer’s location should BKIN ask the customer to return the part to BKIN for repair.
BKIN Technologies warrants that all Software will conform in all material respects to its published specifications when operated on and with the Equipment specified. In the event of a breach of this warranty, provided that BKIN Technologies is notified of the defects within the Initial Maintenance Period, BKIN Technologies will, at its option, exert reasonable efforts to correct the defects, replace the Software, or terminate the EULA and refund any charges paid by you for the Software.
8. DISCLAIMER OF WARRANTIES, LIABILITIES, INDEMNIFICATION: The limited warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations, if any, created by any advertising, documentation, packaging, or other communications.
BKIN TECHNOLOGIES MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BKIN TECHNOLOGIES WILL IN NO EVENT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF THIS EQUIPMENT AND/OR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, BKIN TECHNOLOGIES IS NOT LIABLE FOR ANY COSTS, SUCH AS LOST PROFITS OR REVENUE, LOSS OF EQUIPMENT, LOSS OF SOFTWARE, LOSS OF DATA, COSTS OF SUBSTITUTES, CLAIMS BY THIRD PARTIES, PERSONAL INJURY OR OTHERWISE, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE BKIN TECHNOLOGIES EQUIPMENT AND/OR SOFTWARE, HOWEVER CAUSED. BKIN TECHNOLOGIES DOES NOT WARRANT THAT THE OPERATION OF THE BKIN TECHNOLOGIES EQUIPMENT AND/OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BKIN TECHNOLOGIES OR A BKIN TECHNOLOGIES AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY BEYOND THAT SPECIFIED IN THIS EULA.
BKIN TECHNOLOGIES SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM WHICH IS BASED UPON THE USE OF THE EQUIPMENT AND/OR SOFTWARE, OR ANY PART OF IT, IN CONNECTION WITH EQUIPMENT, SOFTWARE, OR DEVICES NOT FURNISHED BY BKIN TECHNOLOGIES, OR IN ANY MANNER FOR WHICH THE EQUIPMENT AND/OR SOFTWARE WAS NOT DESIGNED, OR IN ANY MANNER FOR WHICH THE EQUIPMENT AND/OR SOFTWARE HAS BEEN MODIFIED BY OR FOR YOU.
YOU ARE RESPONSIBLE FOR THE SELECTION OF EQUIPMENT AND/OR SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, USE OF THE EQUIPMENT AND/OR SOFTWARE, AND THE RESULTS OBTAINED THEREFROM. YOU AGREE TO INDEMNIFY AND HOLD BKIN TECHNOLOGIES AND ITS SUPPLIERS HARMLESS WITH RESPECT TO ALL CLAIMS, INCLUDING THOSE BY THIRD PARTIES, ARISING OUT OF YOUR USE OF THE RESULTS OF OPERATION OF THE EQUIPMENT AND/OR SOFTWARE.
9. TERM: You shall have the right to use the Equipment and/or Software indefinitely, subject to the provisions of this EULA. You understand and agree that the Maintenance Service for any Software provided (which may include continuing access to protocols and databases) will terminate automatically upon expiration of the Initial Maintenance Period included with the purchase of the Software. Thereafter, the Maintenance Service term may be renewed at the then current price and for the then-applicable term, as long as BKIN Technologies offers such Maintenance Service, in accordance with the provisions of this EULA.
10. TERMINATION: This EULA is effective until terminated. Termination of this EULA shall not relieve you of any obligations under any invoiced fees.
This EULA may be terminated automatically without notice from BKIN Technologies as follows:
(A) by you any time; or by either
(B.1) non-payment by you of any amount due under applicable invoices for the Equipment and/or Software, which non-payment continues for a period of thirty (30) days; or
(B.2) non-performance by you of any other term or condition of this EULA, or of any other agreement between you and BKIN Technologies related to the Equipment and/or Software, subject to the provisions of this EULA.
11. ASSIGNMENT: You may not assign this EULA without the written consent of BKIN Technologies.
12. APPLICABLE LAW: This EULA shall be deemed to have been made in Ontario and is governed by, and construed and enforced in accordance with, the laws of the Province of Ontario, Canada, and the federal laws applicable therein. You and BKIN Technologies attorn to the non-exclusive venue and jurisdiction of the Courts of Ontario in respect of any matter or dispute arising from this EULA and its subject matter.
13. SURVIVAL OF AGREEMENTS: Notwithstanding the termination or completion of this EULA, all indemnities, warranties, restrictions and duties of confidentiality and non-disclosure in this EULA will continue in full force and effect to the extent required for their full observance and performance.
14. ENTIRE AGREEMENT; GOVERNING LANGUAGE: This EULA, including any amendments and addendums that may accompany it, constitute the entire agreement between you and BKIN Technologies related to the Equipment and Software and any related support services, and supersedes all prior or contemporaneous oral and written communications, proposals and representations of any kind with respect to the Equipment, Software, and any other subject matter covered by this EULA. The terms and conditions of any subsequent invoice, waiver, amendment or other such agreement used by BKIN Technologies in connection with this EULA shall be considered valid and enforceable to the extent that such terms and conditions can be interpreted as consistent with this EULA. If such terms and conditions cannot be interpreted as consistent with this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.
KINARM™, KINARM Exoskeleton Lab™, KINARM Classic™, KINARM End-Point Lab™, KINARM Assessment Station™, Dexterit-E™, Dexterit-E Explorer™ and KINARM Standard Tests™ or other trademarks are trademarks of BKIN Technologies Ltd. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners.