Z3 Controls Inc. TECHNOLOGY LICENSE AGREEMENT ("Agreement")

NOTICE - YOU MUST READ AND AGREE TO ALL OF THE FOLLOWING BEFORE PROCEEDING WITH USING Z3 CONTROLS INTELLECTUAL PROPERTY. YOU WILL BE BOUND TO THE TERMS THAT FOLLOW DESPITE YOUR FAILURE TO READ OR UNDERSTAND THE FOLLOWING. IF YOU HAVE ANY QUESTIONS PLEASE CONTACT Z3 CONTROLS.

YOU, ON BEHALF OF YOUR EMPLOYER (OR OTHER PRINCIPAL) ("COMPANY"), RECOGNIZING AND ACKNOWLEDGING THE EFFORT EXPENDED BY Z3 CONTROLS IN DEVELOPING THE INTELLECTUAL PROPERTY THAT IS THE SUBJECT-MATTER OF THIS LICENSE AGREEMENT, AND IN EXCHANGE OF OTHER MUTUAL CONSIDERATION BETWEEN COMPANY AND Z3 CONTROLS, HEREBY AGREE AS FOLLOWS:

 

ARTICLE 1 - DEFINITIONS

In this Agreement the following terms shall have the meanings set forth below:

1.1       "Confidential Information" includes, without limitation, the Technology, and any other inventions, trade secrets, circuit or system models, circuit schematics, net-lists, timing models, hardware description language code or other computer software, know-how, technology, ideas or other business, customer, technical and financial information of Z3 Controls that is designated as confidential or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.

1.2       "Developments" means any and all inventions, methods, improvements, industrial designs, literary and artistic works, computer programs, integrated circuit topography designs and any other creations, data and concepts, made, authorized, conceived, created or developed by Licensee, relating or in any way appertaining to, or connected with, the Technology.

1.3       "Intellectual Property" means any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, neighbouring rights, and derivative works thereof, (ii) trademark and trade name rights, (iii) trade secret rights, (iv) patents, design rights, and other industrial property rights, and (v) all other intellectual property rights of every kind and nature however designated.

1.4       "Parties" means the Parties to this Agreement collectively, and "Party" means any one of them;

1.5       "Genuine Authorized Z3 Controls Device" means a software and/or hardware manufactured by or for Z3 Controls and sourced by Licensee directly from Z3 Controls or a Z3 Controls authorized distributor.

1.6       "Derivative Product" means a unit of product that contains or is designed to work in conjunction with one or more Genuine Authorized Z3 Controls Devices.

1.7       "Technology" means the Z3 Controls technology made available to Licensee, which may include any and all hardware, Application Programming Interfaces (APIs) and application code.

1.8       "Trade-marks" means Z3 Controls, Z3 Controls NetMeter, and any other future trade-marks associated by Z3 Controls with the Technology.

 

ARTICLE 2 - LICENSE OF RIGHTS AND RESTRICTIONS ON USE

2.1       Subject to the terms of this Agreement:

(a)        Z3 Controls grants to Licensee a worldwide, revocable, non-exclusive, royalty-free, non-transferable license to use the Technology to evaluate the Technology, and use the Technology to create Developments; and

(b)        Z3 Controls grants to Licensee a worldwide, perpetual, non-exclusive, royalty-free, non-transferable license to use the Technology and any Developments made by Licensee pursuant to 2.1(a) to make or have made, sell and distribute Derivative Products; provided at all times the Technology and Developments used in such Products are used only with Genuine Authorized Z3 Controls Devices.

2.2       Other than for the license granted in Section 2.1(a), above, Licensee has no right to modify the Technology.

2.3       Licensee may copy the Technology only to the extent required for its use of the Technology, provided that in each instance any and all copyright notices are reproduced.

2.4       Derivative Product(s) hereunder are intended to be marketed and sold as the goods of Licensee or Licensee's customer and shall not bear the Trade-marks or name of Z3 Controls, other than with Z3 Controls written permission.

2.5       Use of any part of the Technology with non-Z3 Controls devices is prohibited unless Licensee has entered into a separate written agreement with Z3 Controls for such use.

2.6       Sublicensing of the grant in 2.1(a) is prohibited; sublicensing of the grant in 2.1(b) is permitted only to the extent required for Licensee's foundry or other permitted subcontractor to fulfill its obligations to Licensee in making, or having made, a Product.

ARTICLE 3 -REPRESENTATIONS AND WARRANTIES

3.1      NO WARRANTY. Z3 CONTROLS MAKES NO REPRESENTATION, CONDITION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY Z3 CONTROLS INTELLECTUAL PROPERTY OR THE TECHNOLOGY (COLLECTIVELY "GOODS AND IP"), AND IS PROVIDING SAID GOODS AND IP "AS IS". Z3 CONTROLS SPECIFICALLY EXCLUDES ALL IMPLIED CONDITIONS AND WARRANTIES, INCLUDING IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Z3 Controls does not warrant that the functions contained in the Technology will meet Licensee requirements, or that the operation of the Technology will be uninterrupted or error-free, or that defects in the Technology will be corrected. THE TECHNOLOGY IS NOT DESIGNED OR INTENDED TO BE FAIL-SAFE NOR INTENDED FOR USE IN ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS ("CRITICAL APPLICATIONS"). LICENSEE ASSUMES THE RISK OF ANY USE OF THE TECHNOLOGY IN CRITICAL APPLICATIONS, SUBJECT ONLY TO APPLICABLE LAWS GOVERNING LIMITATIONS ON PRODUCT LIABILITY.

3.2       LIMIT OF LIABILITY. IN NO EVENT WILL Z3 CONTROLS BE LIABLE TO LICENSEE FOR ANY LOSS OR LIABILITY WHATSOEVER OR HOWSOEVER ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING DIRECTLY OR INDIRECTLY (INCLUDING DUE TO LOSS OF DATA, PROFITS, GOODWILL, ACTIONS BY THIRD PARTIES, OR ANY OTHER SPECIAL OR CONSEQUENTIAL LOSS), AND WHETHER ARISING IN CONTRACT, TORT, OR UNDER ANY OTHER LEGAL THEORY, IRRESPECTIVE OF WHETHER SUCH LOSS WERE REASONABLY FORSEEABLE OR IF Z3 CONTROLS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR LIABILITY.

ARTICLE 4 - INTELLECTUAL PROPERTY

4.1       Licensee acknowledges that title in all the Technology belongs to and will remain solely with Z3 Controls (or Z3 Controls licensors, if any). Z3 Controls does not in any way represent or warrant that any Intellectual Property which Z3 Controls may own is valid or non-infringing. Licensee may not decompile, reverse-engineer, disassemble, or otherwise reduce non-modifiable elements of the Technology to a human-perceivable form. Licensee may only modify the Technology for the purposes permitted in Section 2.

4.2       Licensee will not, at any time, either during the term or after the termination of this Agreement dispute or contest the validity of the Intellectual Property underlying, or Z3 Controls's title to the Technology.

ARTICLE 5 - TERM AND TERMINATION

5.1       This Agreement may be terminated in accordance with its terms. However, the license granted in Section 2.1(b) shall endure and continue in full force and effect in respect of Genuine Authorized Z3 Controls Devices used in Derivative Products.

5.2       Licensee may terminate this Agreement at any time by destroying the Technology and all copies thereof. Z3 Controls may terminate this Agreement forthwith upon written notice to Licensee if Licensee: (a) is in material breach of, or attempts to breach, any of its obligations, representations or warranties pursuant to this Agreement and fails to rectify the breach within thirty (30) days after receiving notice of the breach, provided that Z3 Controls shall not be required to provide a cure period in respect of any breach by license of obligations of confidentiality pursuant to this Agreement; (b) is unable to pay its debts when due or is insolvent, is ordered or adjudged to be bankrupt, is placed in the hands of a receiver, enters into any scheme or composition with its creditors, is dissolved, liquidated or wound up, or makes an assignment for the benefit of its creditors; (c) has sourced or attempted to source Z3 Controls Devices from a person other than Z3 Controls or a representative or distributor authorized to sell to Licensee; or (d) has sourced non- Z3 Controls Devices and has used or attempted to use the Technology or any Developments with said non- Z3 Controls Devices.

5.3       Licensee acknowledges that the covenants in this Section 5 are reasonable and necessary to protect and preserve Z3 Controls rights, and that Z3 Controls would suffer immediate irreparable harm without such covenants. Licensee also acknowledges that these covenants are enforceable by injunction, including an interlocutory injunction, by any court of competent jurisdiction.

ARTICLE 6 -CONFIDENTIALITY

6.1       Licensee shall hold in confidence all Confidential Information and other information received from Z3 Controls and agrees to: (a) only use such information as permitted under this Agreement; (b) protect the Confidential Information as though it were its own information of a similar kind and value, but in any event with no less care than a reasonable standard of care consistent with typical practices in the semiconductor industry; (c) limit disclosure of Confidential Information to its employees and direct contractors who have a need to know in order to make Developments, and in each case only where such employees or direct contractors are subject to written confidentiality obligations to Licensee no less stringent than Licensee's obligations to Z3 Controls; (d) ensure that any copies of Confidential Information are reproduced with all confidential or proprietary legends appearing on the original; (e) undertake to not publish or disclose the results of any benchmarking of the Technology, or use such results for competing software development activities; and (f) notify Z3 Controls promptly in the event of any known or suspected loss, misuse, or non-permitted disclosure of Confidential Information has occurred.

6.2       Confidential Information shall not include any information that: (a) becomes part of the public domain; (b) is received by Licensee from another person or organization in possession of such information not in breach of a duty of confidentiality; (c) was rightfully in the possession of Licensee prior to its disclosure; or (d) is independently developed by Licensee without reference to or use of the Confidential Information. In addition, Licensee may disclose Confidential Information to the extent required by a court of competent jurisdiction or an authorized government agency, provided that Z3 Controls is given reasonable advance notice of such disclosure.

6.3       Except as expressly permitted herein and only to the extent necessary for Developments, the Licensee will not disassemble, decompile or otherwise reverse-engineer the Technology, or any Z3 Controls Intellectual Property, or otherwise attempt to learn underlying circuit schematics, source code or algorithms, except as permitted pursuant to Section 2.1(a).

ARTICLE 7 - GENERAL

7.1       This Agreement constitutes the entire agreement between the Parties relating to its subject matter.

7.2       This Agreement may be amended only by a document in writing signed by duly authorized officers of the respective Parties.

7.3       The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be deemed to create between the Parties a partnership, association, joint venture or agency relationship or as granting to either Party any right or authority to assume or to create any obligation or responsibility, express or implied for on behalf of the other Party. Neither Party shall hold itself out as agent of the other Party nor shall act in a way that may induce customers of the other Party or members of the public to believe that it is authorized to act in the name or on behalf of the other Party.

7.4       The Parties shall execute, acknowledge and deliver all such further documents, including assignments of intellectual property, and do all such other acts as may be necessary or appropriate in order to carry out their duties under this Agreement.

7.5       No waiver of any rights pursuant to the Agreement shall be effective unless made in writing.

7.6       This Agreement shall be interpreted and construed and the legal relations created herein shall be determined in accordance with the law of the Province of Ontario, Canada. In respect of any matter relating to this Agreement, the Parties hereto submit to the jurisdiction of the courts of the Province of Ontario.

7.7       Licensee may not assign, sublicense or otherwise transfer or encumber all or any of its rights or obligations under this Agreement without the express written consent of Z3 Controls. For greater certainty, Z3 Controls may assign, license or otherwise transfer or encumber the Technology, the Intellectual Property, or any or all of its rights under this Agreement.

 

Agreed by me on behalf of COMPANY (as defined above)