Heads Up License Agreement
This Product License Agreement (this "Agreement"), dated as of (the "Effective Date"), is entered into by and between Heads Up Display Inc., a Delaware corporation with an address at 640 Ellicott Street, #108, Buffalo, New York 14203 (the "Licensor"), and an entity (the "Licensee"). The Licensor and Licensee together may be referred to herein as the "Parties", and individually, as the "Party".
WHEREAS, Licensor has developed wearable Heads Up Indicator Devices (the "Devices") and Software Solutions that it believes provides a system (the "System") for safety and communication issues faced by organizations operating in hazardous working environments, or work environments where monitoring of the workplace is desired or needed, which include a mobile application and a computer platform used in connection with the Heads Up Indicator Devices.
WHEREAS, Licensee desires to license from Licensor, and Licensor desires to license to Licensee the Heads Up Indicator Devices, System and associated software and now, therefore, in consideration of the agreements set forth herein the Parties agree as follows:
1. License of Heads Up Indicator Devices and Software Licenses.
Licensor agrees to grant a license to Licensee, and Licensee agrees to accept a license from Licensor, for the Licensor’s Devices and System. Licensor hereby grants Licensee a revocable, nonexclusive, non-transferable, non-sublicensable license to the Devices and System for the Term of this Agreement. In addition to the provisions set forth in Paragraph 6 below, it is expressly understood and agreed that Licensor retains all intellectual property rights to the Device(s) and System(s). This Agreement does not transfer or waive any intellectual property right of Licensor, or any other right, beyond the ability of Licensee to use Licensor’s Device(s) and System(s). Licensee further agrees to protect Licensor’s intellectual property and licensing rights (e.g., to not allow the Devices or Systems to be used by unlicensed third-parties, not allow the Devices or Systems to be reversed engineered, etc.).
2. Limitation of Liability.
a) Heads Up Display Inc. makes no warranty, express or implied, that: (1) the System(s) or Device(s) guarantee compliance with any specific regulation or standard; or (2) that the use of the System(s) or Device(s) will prevent exposure to an occupational hazard, accident, injury, illness or fatality. Instead, the System(s) and Device(s)’ use is intended to monitor levels of specific previously known or identified substances or conditions within the workplace (e.g., the existence of a high decibel environment, the existence of silica in the workplace, etc.). Thereafter, the System(s) and Device(s) are intended to assist employers in detecting and alerting employers when certain predetermined threshold levels (as determined and set by the employer) are met. The System is intended only for use in workplaces located in the United States of America that are under the jurisdiction of the United States Occupational Safety and Health Administration or equivalent state plan (OSHA). To be effective, the System must be used in connection with OSHA’s Personal Protective Equipment (PPE) standard (29 CFR 1910.132), Employee Alarm Systems Standard (29 CFR 1910.165), Emergency Access Plan standard (29 CFR 1910) and all other applicable health and safety regulations and standards, as well as all instructions, warnings and limitations accompanying the System(s) and Device(s). It is essential that all instructions and government regulations relating to the use of each component of the System(s) and Device(s) be followed in order for the System(s) and Decice(s) to help protect the wearer. Misuse of personal protective equipment may result in an undesired exposure to a workplace hazard and/or injury, illness, sickness, or death. For correct PPE selection and use, individuals should consult their on-site safety professional, industrial hygienist, or medical professional.
b) Heads Up Display Inc. takes responsibility for the material and craftsmanship of the Heads Up Safe communication System and Devices, mobile app, and associated software. If the System and Devices fail as a result of defects in the materials or craftsmanship of the System or Devices, and that failure directly causes a financial loss to the Licensee, Heads Up Display Inc., will reimburse the Licensee for any such direct financial loss to the Licensee. However, such loss shall be limited to the total amount paid to Licensor by Licensee under this Agreement. Licensor shall not be responsible for any consequential or indirect losses or damages of any kind. Heads Up cannot ensure the functionality of any connected mobile device, battery, and wireless signaling, including Bluetooth, WiFi, GPS, and cell networks upon which the system relies. If any failure of the System or Devices results, in whole or part, by any such failure, Heads Up shall not be responsible for those losses. It is the duty of the Licensor to ensure all Operators, mobile device battery, Bluetooth, WiFi, GPS, and cell networked mobile devices are in good working condition, and the operating environment is capable of receiving the signals necessary for the Heads Up Safe communication System to operate as intended.
3. Intellectual Property and Confidentiality.
All text, graphics, images, software, information, copyrights, trademarks, service marks, trade dress, trade secrets, schematics or patents, are protected by copyright, trademark, and other laws and Licensee hereby acknowledges and agrees that: (i) all Licensor Content, including all associated intellectual property rights, are the exclusive property of Licensor; and (ii) Licensor reserves all of its intellectual property rights. Licensee further agrees that the System and Devices shall not be disclosed to any third-party and agrees that this Agreement shall not be used to obtain or utilize the System or Devices in order to identify or gain derivative use(s) and/or derivative intellectual property, including derivative inventions. Any such derivative inventions shall be the property of and assigned to Heads Up Display Inc. Licensee further agrees to keep confidential any proprietary information that is necessarily disclosed by Licensor to Licensee to effectuate this Agreement.
We use the information that we collect on the System to operate, maintain, enhance and provide all features of the Service, to provide services and information that you request, to respond to comments and questions and otherwise to provide support to operators. We use the information that we collect on the System to understand and analyze the trends and preferences of our Operators to improve the System and to develop new products, services, features, and functionality. Except as described in this Policy, we will not publicly disclose your personal or company information that we collect on the System to third parties without your consent.
5. Arbitration and Limitation of Damage.
Any and all disputes arising out of, or that in any way relate to this Agreement, shall be resolved through binding arbitration in accordance with the commercial rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted in Buffalo, New York before a single arbitrator appointed by the AAA. The parties expressly agree to the jurisdiction of the AAA and agree to accept service of any demand for arbitration that complies with the AAA rules. Governing Law. The laws of the State of New York shall govern this Agreement, and any dispute hereunder, and shall be used to construe this Agreement and any terms contained therein. The laws of the State of New York shall also be applied by any arbitrator appointed to resolve any dispute under this Agreement.
6. Entire Agreement.
This Agreement supersedes and replaces all prior agreements (whether written or verbal) between Licensor and Licensee.
INDEMNIFICATION. LICENSEE SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS LICENSOR, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL OTHER INDIVIDUALS ASSOCIATED WITH LICENSOR, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES, LOSSES, AND DAMAGES (INCLUDING, BUT NOT LIMITED TO DEATH, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF INCOME, ANY OTHER FINANCIAL OR PECUNIARY LOSS OR ANY OTHER CLAIM ASSERTED UNDER ANY STATE, FEDERAL OR LOCAL LAW) BROUGHT BY ANY PERSON OR ENTITY THAT IN ANY WAY ARISES OUT OF LICENSEE’S USE OF ANY DEVICE OR SYSTEM OR FROM ANY LOSSES ARISING OUT OF LICENSEE’S BREACH OF THIS AGREEMENT. THIS INDEMNITY PROVISION SHALL NOT REQUIRE LICENSEE TO INDEMNIFY LICENSOR FOR LICENSOR’S SOLE NEGLIGENCE OR INTENTIONAL ACTS. THIS PROVISION REQUIRES LICENSEE TO PROVIDE A DEFENSE UPON ASSERTION OF A CLAIM VERSUS A FINAL DISPOSITION OF LIABILITY.
Any notice required by this Agreement shall be provided in writing to the other Party at the address set forth in the opening paragraph of this Agreement.
This Agreement may be amended, modified or superseded only by a written instrument signed by all of Parties.
9. Construction of Agreement.
This Agreement is the result of a mutual agreement between the Parties, both of which have had the opportunity to seek the advice and representation of counsel, such that the Agreement shall not be construed against either Party in the event of an ambiguity.
If any provision of this Agreement is held unenforceable, this Agreement shall be interpreted as if that provision is removed (in the narrowest manner possible) with the remainder of the Agreement in full force and effect.
11. Date and Counterparts.
The effective date of this Agreement shall be the date of the last signature below. This Agreement may be executed in counterparts and collectively constitute an enforceable Agreement.