Last Revised: August 21, 2019
This End User license Agreement (the “EULA”) is entered into between you and Misty Robotics, Inc. (“Misty Robotics”, “us”, or “we”). By using the software (the “Software”) that is embedded in the Misty II (the “Product”), you agree to the terms of this EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE SOFTWARE AND YOU MAY CHOOSE TO CONTACT US AT THE EMAIL ADDRESS PROVIDED BELOW TO RETURN THE PRODUCT IN NEW AND UNUSED CONDITION WITHIN TEN (10) DAYS OF OPENING.
This EULA governs your access and use of the Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SOFTWARE AND TO ENTER INTO THIS EULA.
AS DESCRIBED IN SECTION 2 (AUTOMATIC SOFTWARE UPDATES), YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT.
- GRANT OF LICENSE.
- Grant. Subject to the terms of this EULA, Misty Robotics hereby grants you a non-exclusive, limited, non-transferable license, without the right to sublicense, to use one (1) copy of the Software, in executable object code form only, solely for the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes.
- Restrictions. Except as otherwise expressly permitted by Misty Robotics in writing, you agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party, (b) copy or use the Software for any purpose other than as permitted in Section 1 (Grant of License), (c) use any portion of the Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software.
- AUTOMATIC SOFTWARE UPDATES. Misty Robotics may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and related services (“Updates”). These may be automatically installed by Misty Robotics in its discretion without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Software and you agree to promptly install any Updates Misty Robotics provides. Your continued use of the Product is your agreement to this EULA.
- OWNERSHIP. The Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Misty Robotics and its licensors. Misty Robotics and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Misty Robotics with respect to the Software shall be Misty Robotics’ property. Misty Robotics may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Misty Robotics does not waive any rights to use similar or related ideas previously known to Misty Robotics, developed by its employees, or obtained from other sources.
- OPEN SOURCE. Certain items of software included with the Software may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Misty Robotics makes such Open Source Software, and Misty Robotics’ modifications to that Open Source Software, available by written request to Misty Robotics at the email or mailing listed below.
- TERM AND TERMINATION. This EULA and the license granted hereunder are effective on the date you first use the Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Misty Robotics may terminate this EULA at any time if you fail to comply with any of the terms hereof. You may terminate this EULA effective immediately upon written notice to Misty Robotics. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Software, but the terms of Sections 2 (Automatic Software Updates) through 16 (General) will remain in effect, after any such termination.
- WARRANTY DISCLAIMER.
- General. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MISTY ROBOTICS PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MISTY ROBOTICS DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. MISTY ROBOTICS MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
- Use at Your Own Risk. YOU USE THE SOFTWARE AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND MISTY ROBOTICS DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO ANY HOME, PERSONAL ITEMS, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, AND MOBILE DEVICE, RESULTING FROM YOUR USE OF THE SOFTWARE OR PRODUCT.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) MISTY ROBOTICS BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF MISTY ROBOTICS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) MISTY ROBOTICS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO US OR MISTY ROBOTICS’ AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR TWELVE (12) MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. MISTY ROBOTICS DISCLAIMS ALL LIABILITY OF ANY KIND OF MISTY ROBOTICS’ LICENSORS AND SUPPLIERS.
- FOR U.S. GOVERNMENT END USERS. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
- EXPORT COMPLIANCE. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required. Unless prohibited by state or federal laws to which you are subject, you will indemnify and hold Misty Robotics harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
- GOVERNING LAW; VENUE. This EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of Colorado, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Denver County, Colorado and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Misty Robotics may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information. If you are subject to any state or federal law requiring venue in a different jurisdiction or requiring that the laws of a different jurisdiction apply, this Section 10 shall be deemed revised to conform with such laws.
- ASSIGNMENT. Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
- NOTICES. Any notice to you may be provided by email to the address that you registered with Misty Robotics.
- SEVERABILITY. If any provision of this EULA 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.
- WAIVER. All waivers by Misty Robotics will be effective only if in writing. Any waiver or failure by Misty Robotics to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- GENERAL. The Software is deemed irrevocably accepted upon your use of the Software or Product. Misty Robotics will have no responsibility to provide maintenance or support services with respect to the Software. The parties are independent contractors. You acknowledge that the Software contains valuable trade secrets and proprietary information of Misty Robotics, that any actual or threatened breach of Section 1.2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Misty Robotics for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.
If you have questions regarding this EULA, please contact Misty Robotics at [email protected]