End User License Agreement

1600CHS370049 (SUBSCRIPTION SOFTWARE)

IMPORTANT PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a company) (“Licensee”) and Tokyo Electron Device America, Inc. and its applicable Affiliates (collectively, “TED”), for Software, owned by TED. For purposes of this EULA, “Software” shall mean machine-readable instructions used by a processor to perform specific operations. “Affiliates” shall mean any company controlled by, controlling or under common control with Tokyo Electron Device America, Inc., “Control” shall mean direct or indirect ownership of at least 50% of the equity in a company. THIS EULA SHALL BECOME EFFECTIVE AS OF THE DATE IT IS CLICK-ACCEPTED BY LICENSEE.

1. GRANT OF LICENSE. TED grants Licensee, the following rights provided that Licensee complies with all terms and conditions of this EULA: For Software provided with TED Hardware, TED hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable license during the applicable Subscription Term (as defined below) of this EULA to use the Software solely and exclusively for Licensee’s internal use and for no other purpose. For purposes of this EULA, “TED Hardware” shall mean the equipment necessary to use Software and supplied by TED to Licensee. Licensee may use Software only in TED Hardware. To the extent that non-device specific Software is provided to Licensee in a manner that is designed to be installed by Licensee, Licensee may install one copy of the installable Software on one hard disk or other device storage for one printer, computer, workstation, terminal, controller, access point or other digital electronic device, as applicable (an “Electronic Device”), and Licensee may access and use that Software as installed on that Electronic Device so long as only one copy of such Software is in operation. Licensee may install, use, access, display and run only the number of copies of the Software to which Licensee is entitled during the Subscription Term or other agreement with TED. Licensee is entitled, during the Subscription Term, to obtain, if available, updates, from TED and operational technical support. Certain items of the Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA. TED makes the applicable open source license provisions available to Licensee on a Legal Notices accessible on Licensee’s device and/or TED products.
   1. Additional User Licensees. Licensee may purchase additional user licenses at any time upon payment of the appropriate fees to TED.
   2. Software Transfer. Licensee shall not transfer this EULA and the rights to the Software or updates granted herein to a third-party. Licensee shall not also make available Software to any third-party nor permit any party to do so.
   3. Subscription Terms and Renewals. The Software is licensed under an Application Form on a subscription basis (“Subscription”). Details of such subscription period (“Subscription Term”), fees, and payment methods, etc., shall be provided on the Application form or the written form designated by TED.

2. RESERVATION OF RIGHTS AND OWNERSHIP. TED reserves all rights not expressly granted to Licensee in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. TED own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold.

3. LIMITATIONS ON END USER RIGHTS. Licensee shall not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Software or modify, or disable any features of, the Software, or create derivative works based on the Software. Licensee shall not rent, lease, lend, sublicense or provide commercial hosting services with the Software.

4. DEVICE DATA. “Device Data” means usage data collected by software or devices licensed(or supplied) under this EULA such as battery management (time to empty, standby current, average current), device system time, CPU processing load, application usage time, free RAM, number of running processes, network information (name, identifier), device identifier, firmware version, hardware version device type, audio volume, LED state, beeper volume, backlight level, key light, odometer count, reboot, reboot cause, total storage and memory availability, power cycle count, device up time, read data. Notwithstanding anything else in this EULA, all title and ownership rights in and to Device Data are held by TED. In the event, and to the extent Licensee is deemed to have any ownership rights in Device Data, Licensee hereby grants TED a worldwide, transferable, irrevocable, non-exclusive, royalty-free license to use Device Data.

5. LOCATION INFORMATION. The Software may enable Licensee to collect location-based data from one or more client devices which may allow Licensee to track the actual location of those client devices. TED specifically disclaims any liability for Licensee’s use, misuse, or fraudulent use of the location-based data. Licensee agrees to pay all reasonable costs and expenses of TED arising from or related to third-party claims resulting from Licensee’s use, misuse, or fraudulent use of the location-based data.

6. PRIVACY. TED’s Privacy Policy (located at: https://www.teldevice.co.jp/privacy.html), as amended from time to time, is hereby incorporated by reference into this EULA. If end users submit personal data to TED in connection with the use of TED hardware or Software, the ways in which TED collects and uses that data are regulated by TED’s Privacy Policy in accordance with applicable law.

7. Confidentiality.
   1. TED and Licensee shall maintain the confidentiality of technical, business and management information of the other party including information on the Software and Software use, obtained through this EULA (“Confidential Information”) and shall not disclose or divulge such Confidential Information to a third party without prior written consent of the other Party. For the purpose of confidentiality, TED and Licensee shall manage the Confidential Information with due care of a prudent manager.
   2. The following information shall not be deemed as Confidential Information:
      1. information already in the possession of the receiving party at the time of disclosure;
      2. information that was already in the public domain at the time of disclosure or that subsequently entered the public domain for reasons not attributable to the receiving party;
      3. information lawfully obtained from a third party without the obligation of confidentiality after disclosure;
      4. information independently developed or created by the receiving party without using the Confidential Information; or
   3. TED and Licensee may disclose Confidential Information only to those who are its employees or its Concerned Parties. For the purposes of this paragraph, “Concerned Parties” shall include but not be limited to the parties’ parent company, subsidiary, affiliated company, sister company, an officer of an affiliated company, joint researcher, outsource, attorney, certified public accountant, certified public tax accountant, or any other advisor whose services are required for the performance of this EULA and who are subject to the same confidentiality obligations as those assumed by the receiving party in this EULA, and shall not use the Confidential Information for any purpose other than this EULA. When the TED or Licensee disclose the Confidential Information to the persons provided for in this paragraph, it shall be fully responsible for the performance of its obligations.
   4. Notwithstanding paragraph 1 of this Article 13, the TED and Licensee may, to the minimum extent necessary, publish or disclose Confidential Information in accordance with applicable laws and regulations, courts, supervisory authorities, financial instrument exchanges, and other judicial, regulatory or administrative decisions. If a Party makes such publication or disclosure, it shall promptly notify the other Party.
   5. The TED and Licensee shall not copy or reproduce the Confidential Information beyond the extent required for the Purpose under this EULA. Any copies or reproductions shall be included as Confidential Information.
   6. In the event that this EULA is rescinded or terminated for any reason by a Party, the other Party shall promptly return or destroy the Confidential Information (including any copies and reproductions) in accordance with the instructions of the other Party. When disposing Confidential Information, a method shall be used to ensure that the Confidential Information cannot be reused.
   7. In the event the other Party is likely to disclose Confidential Information or use Confidential Information for other purposes in contravention of this Article 13, the TED or Licensee may prohibit such disclosure or use for other purposes by way of injunction.

8. SOFTWARE RELEASES. During the Subscription Term, TED may make software releases available to Licensee as those releases become available after the date Licensee obtains its initial copy of the Software. This EULA applies to all and any component of the release that may be made available to Licensee after the date Licensee obtains its initial copy of the Software. To receive Software provided through the release, Licensee must first be licensed for the Software identified by TED as entitled to the release.

9. EXPORT RESTRICTIONS. Licensee acknowledges that the Software is subject to export restrictions of various countries. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations.

10. ASSIGNMENT. Licensee shall not assign this EULA or any of Licensee’s rights or obligations hereunder (by operation of law or otherwise) without the prior written consent of TED. TED may assign this EULA and its rights and obligations without Licensee’s consent. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.

11. TERMINATION.
    1. TED may terminate this EULA, immediately, upon written notice to Licensee in each of the following circumstances:
       1. Licensee’s failure to comply with any of the provisions of this EULA, which failure is not remedied during ten (10) days following written notice to Licensee of such failure;
       2. Licensee repudiates, or threatens to repudiate, any of its obligations in this EULA;
       3. in the event of a Force Majeure Event affecting TED’s performance under this EULA for more than sixty (60) consecutive days;
       4. the institution by or against Licensee of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of the other Licensee’s debts; or
       5. Licensee’s dissolution or ceasing to conduct business.
    2. The provisions of Sections 2, 6, 7, 12, 14, 15, 17, 18, and 19 and any other provisions which by their nature are intended to survive the termination or expiration of this EULA, shall continue as valid and enforceable obligations of the Parties notwithstanding any such termination or expiration
    3. Upon termination of this EULA, Licensee must cease all use of the Software and destroy all copies, full or partial, of the Software.

12. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (i) THE SOFTWARE IS PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” (ii) LICENSEE ACKNOWLEDGES THAT THE USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK; AND (iii) TED EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, DUTIES, CONDITIONS OR COMMITMENTS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON INFRINGEMENT OR OTHER WARRANTIES OR CONDITIONS IMPLIED BY STATUTE, OR ANY WARRANTIES OR CONDITIONS BASED ON A COURSE OF DEALING, USAGE OF TRADE OR INDUSTRY STANDARDS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TED AND ITS TED DOES NOT WARRANT OR OTHERWISE COMMIT THAT: (w) ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE OR COMPLETE; (x) THE SOFTWARE WILL MEET ANY PARTICULAR PERFORMANCE OR AVAILABILITY CRITERIA; (y) ANY LICENSEE CONTENT WILL NOT BE LOST OR DAMAGED; OR (z) ERRORS WILL BE CORRECTED OR ANY PARTICULAR SUPPORT REQUESTS WILL BE RESOLVED AS MAY BE REQUESTED BY LICENSEE.

13. THIRD-PARTY APPLICATIONS. Certain third-party applications may be included with or downloaded with this Software. TED makes no representations whatsoever about any of these applications. Since TED has no control over such applications, Licensee acknowledges and agrees that TED is not responsible for such applications. Licensee expressly acknowledges and agrees that use of third-party applications is at Licensee’s sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with Licensee. Licensee agrees that TED shall not be responsible or liable, directly or indirectly, for any damage or loss, including but not limited to any damage to or loss of data, caused or alleged to be caused by, or in connection with, use of or reliance on any such third-party content, products, or services available on or through any such application. Licensee acknowledges and agrees that the use of any third-party application is governed by such third-party application provider’s Terms of Use, License Agreement, Privacy Policy, or other such agreement and that any information or personal data Licensee provides, whether knowingly or unknowingly, to such third-party application provider, will be subject to such third-party application provider’s privacy policy, if such a policy exists. TED DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD-PARTY APPLICATION PROVIDER. TED EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER LICENSEE’S PERSONAL INFORMATION IS CAPTURED BY ANY THIRD-PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD-PARTY APPLICATION PROVIDER.

14. LIMITATION OF LIABILITY. 　TED WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD-PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF TED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE. NOTWITHSTANDING THE FOREGOING, TED’S TOTAL LIABILITY TO LICENSEE FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF LICENSEE’S USE OF THE SOFTWARE OR THIRD-PARTY APPLICATIONS, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE AMOUNT SPECIFICALLY PAID BY LICENSEE IN CONNECTION WITH THE SOFTWARE LICENSE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 12, 13, AND 14) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE

15. INJUNCTIVE RELIEF. Licensee acknowledges that, in the event Licensee breaches any provision of this EULA, TED will not have an adequate remedy in money or damages. TED shall therefore be entitled to seek to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting bond. TED’s right to obtain injunctive relief shall not limit its right to seek further remedies.

16. Amendment
    1. TED may amend this EULA in any of the following events:
       1. if the amendment to this EULA aligns with the general interest of Licensee; or
       2. if the amendment to this EULA does conflict with the purpose of this EULA, and it is reasonable in light of the circumstances concerning the amendment such as the necessity of the amendment, the appropriateness of the details of the amended conditions, and the details of such provisions.
    2. If TED intends to amend this EULA, TED will specify the effective date of such amendment, and notify the Licensee of its intention to amend this EULA, the details of the amended terms of this EULA, and the date of such amendment, by a method designated by TED in no later than two (2) weeks before such amendment
    3. Notwithstanding paragraph 1 and 2 of this Section 16, Licensee will be deemed to have agreed to such amendment if Licensee do not cease the use of Software upon receiving such notification from TED.

17. Severability.　If a provision of this EULA is held invalid under any applicable law, such invalidity will not affect any other provision of this EULA that can be given effect without the invalid provision. Further, all terms and conditions of this EULA will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.

18. Entire Agreement.　This EULA constitutes the entire agreement and understanding between the parties hereto with respect to this EULA and supersedes all prior agreements and understandings, whether written or oral, between the parties hereto.

19. APPLICABLE LAW. 　This EULA is governed by the laws of Japan, without regard to its conflict of law provisions. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In the event any and all disputes arising out of or related to this EULA cannot be settled through consultation, such dispute shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) before a tribunal of one (1) arbitrator appointed by the ICC. The arbitration shall be held in the State of California.

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