THIS LEO STARTER KITAGREEMENT (the “Agreement”)is made as of the dateof the order confirmationof the LEO Starter Kitbetween Workaround GmbH (ProGlove) and its affiliates (“ProGlove”) having a place of business atRupert-Mayer-Str. 44, 81379 Munich, Germanyand the companyhaving a place of business according to the order address (“Company”). ProGlove andCompany are referred to herein individually as a “Party” or collectively, as the “Parties.This Agreement sets forth the terms under which ProGlove will provide Companypre-release hardware and/or software identified on Exhibit A and related information and documentation (the “Prototype”). As used herein, the Prototypeis defined to include any updates, upgrades, bug fixes, or enhancements to such Prototypes which ProGlove, in its sole discretion, chooses to provide or make available to Company during the Term. Additional hardware or software may be added to the Prototypeduring the Term upon mutual agreement between the Parties in writing via an amendment to Exhibit A.Please read this Agreement carefully and if you, as Company’s authorized representative, agree to the terms set forth in the Agreement, this Agreement is accepted by signing the order confirmation of the LEO Starter Kitbelonging to this Agreement.This Agreement shall take precedence over ProGlove’s Terms and Conditions(“T&Cs”)in case of contradiction. The T&Csas set out on the website https://oldproglove.wpengine.com/de/general-terms-and-conditions/apply subordinately.
1.License. Provided that Company conforms to the terms and conditions of this Agreement, ProGlove hereby grants Company a limited, non-exclusive, non-transferable license to, during the Evaluation Periodas set out in section 2, use the Prototypesolely for non-commercial use and only for the purpose of evaluating the Prototype. Company is not authorized to use the Prototypein a productioncapacity or for any other commercial purpose, and any such commercial use of the Prototypeshall be deemed a breach of this Agreement. Company’s non-commercial use of the Prototypefor the sole purpose of evaluating the Prototypeis referred to herein as the “Evaluation.”
2.Evaluation Period. The Evaluation Period is defined in Exhibit A. Any modification to the Evaluation Period must be mutually agreed toduring the Termin writing by the Parties via an amendment to Exhibit A.
3.Conditions. Company acknowledgesthat the Prototype is still in the construction phase and is being transferred to customer for testing and validation purposes. Company acknowledgesthat the Prototypemay include pre-release versions of hardware and/or software that have not been fully tested or debugged and that, accordingly, Company may experience problems or errors with the Prototype, which ProGlove is not obligated to correct. Thus, the Prototypeis provided “as-is” and ProGlove is not obligated to provide support for the Prototype.Companyacknowledges that,beyond the documentation supplied with this Agreementand as may be furnished at a later date at the discretion of ProGlove, no documentation, manual, certification or labelling of the Prototypeis provided or owed by ProGlove.Company shall exercise reasonable care in using the Prototype, including Proper Useas set out in Exhibit Band maintenance in accordance with any accompanying documentation(or updates as may be furnished at a later date).
4.Instruction of employees. Company agrees toprovide instructions on the Prototype toits employees who will make use of or otherwise encounterthe Prototype. The instructionsmust include at least the proper use as set out in Exhibit B. Company agrees that itwill require its employeesto use the prototype only within the proper use as set out in Exhibit B.
5.Restrictions. Company agrees that it will not and will notpermit others to: (i) copy, modify, distribute, translate or create a derivative work of any aspect of the Prototype; (ii) reproduce, sell, publish, commercially exploit, rent, lease, sublicense, assign or otherwise transfer or make availablethe Prototypeitself orany component of the Prototypeto any third party, or otherwise disseminate any component of the Prototypein any manner; (iii) reverse-engineer, decompile, or disassemble any component of the Prototype;(iv)attempt to derive source code from software of the Prototype; or (v) remove any proprietary notices, labels, or marks on the Prototype.
6.Ownership. Nothing in this Agreement or the delivery of the Prototypeto Company shall be interpreted as a transfer of ownership in the Prototype.Company acknowledges and accepts that ProGlove remains the sole owner and holder of all intellectual rights to its Prototype, all related rights, in particular but not limited to product specifications, patents, utility models, designs, services, technologies, marks, logos, concepts, know-how, domains and contents on the website of ProGlove.Except for the limited rights expressly stated herein, ProGlove reserves and does not grant by implication, estoppel, or otherwise, any rights to Company under any ProGloveproperty, including patents, trademarks, copyrights or trade secrets. Company isespeciallynotentitled to apply for patents
or other legal protection rights using the information disclosed pursuant to this Agreement. Companyis further not authorized to copy, modify, sell, disclose or otherwise interfere with the proprietary rightsof ProGlove.
7.Payment Terms. Unless otherwise specified in writing byProGlove, there is no cost to participate in the Evaluation. Evaluation Fees, if applicable,indicatedand set outon Exhibit A, shall be invoiced by ProGloveupon shipment of the Prototype. Payment of all Evaluation Fees by Company shall be due net forty-five (45) days of date of invoice.
8.Confidentiality. This Agreement is subject to the terms of any active non-disclosure agreement (NDA) executed by the Parties having a purpose that encompasses the subject matter of the Evaluation. Company agrees to the following confidentiality terms:
8.1“Confidential Material” is defined as any non-public information, data, software, or object associated with the Evaluation, including the Prototype,that is (i) disclosed or provided by one Party to the other in oral, written, graphic, machine recognizable, and/or physicalform or (ii) obtained from the use, examination, testing or analysis of the Prototype, including Evaluation Information (as defined in Section 14of this Agreement). The nature and existence of this Agreement are considered Confidential Material.
8.2 The obligationsset forth in Section 9.4 shall not apply to any portion of the Confidential Materialthat the receiving Party can demonstrate to the disclosing Party’s satisfaction (i) is or becomes available to the public through no fault of the receiving Party; (ii) is explicitly approved for release by written authorization of the disclosingParty; (iii) is lawfully obtained from a third party withoutbreach ofa confidentialityobligation; (iv) is known to the receiving Party prior to such disclosure; or (v) is independently developed by the receiving Party or any of its affiliated companies without the use of any of the disclosingParty’s Confidential Materialor any breach of this Agreement.
8.3 If a Party is required to disclose Confidential Materialpursuant to applicable law, statute, regulation, or court order, thatParty will give theother Party prompt written notice of the requirementand a reasonable opportunity to object to such disclosure and seek a protective order or appropriate remedy. If, in the absence of a protective order, the Party determines, upon the advice of counsel, that it is required to disclose such information, it may disclose only Confidential Materialspecifically required and only to the extent compelled to do so.
8.4 For a period of five (5) years from the Effective Date, the Parties will (i) restrict disclosure of Confidential Materialto only those who must be directly involved with the Confidential Materialfor the Evaluation and who are bound by this Agreement (ii) use the same degree of care as for its own materialof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Material; (iii) promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Materialand take reasonable steps to regain possession of the Confidential Materialand prevent further unauthorized actions or other breach of thisAgreement; and (iv) only use the Confidential Materialfor the sole purpose oftheEvaluation.
8.5 All Confidential Materialremains the property of the disclosing Party and will not be copied or reproduced without the express written permission of the disclosing Party, except for copies that are absolutely necessary for the Evaluation. Within ten (10) days of receipt of the disclosingParty’s written request, the receivingParty will return all Confidential Materialto the disclosing Party along with all copies and portions thereof or certify in writing that all such Confidential Materialhas been destroyed.
9.Term. The Term of thisAgreement shall commence on the Effective Date and will expireon the later of (a) two (2) years from the Effective Date and (b) the final day of the latest Evaluation Period that is entered into within two (2) years of the Effective Date. ProGlovemay terminate this Agreement at any time prior to the end of the Termfor any reason or for no reason upon fifteen (15) days written notice to Company. Company may terminate this Agreement prior to the end of the Termupon fifteen (15) days written notice to ProGloveand returning hardware of the Prototypeand destroying software of the Prototypein accordance with Section 9 of this Agreement. The Parties agree that Sections 6, 7, 9, 10, and12-16shall survive the expiration or termination of this Agreement.
10.Warranty Disclaimer. EACH PARTY RECOGNIZES AND AGREES THAT THE PROTOTYPEIS DELIVERED AS-IS, WHERE IS, AND WHEN AVAILABLE. PROGLOVEMAKES NO REPRESENTATIONS OR WARRANTIES UNDER OR RELATED TO THIS AGREEMENT FOR THE PROTOTYPEAND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, RELATED TO THE PROTOTYPE, INCLUDING WITHOUT LIMITATION, WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEOR THE LIKE, IT BEING AGREED THAT ALL SUCH RISKS ARE, AS BETWEEN PROGLOVEAND COMPANY, TO BE BORNE BY COMPANY.PROGLOVEDOES NOT MAKE ANY REPRESENTATIONS AS TO THE APPLICABILITY, SUITABILITY, PROPER USEOR LICENSE-ABILITY OF THEPROTOTYPE. COMPANY ACKNOWLEDGES THAT THE PROTOTYPEMAY NOT BE PRODUCTION QUALITY AND MAY NOT BE GENERALLY AVAILABLE AS A PRODUCT AND MAY NEVER BECOME GENERALLY AVAILABLE.
11.Limitation of Liability. SUBJECT TO SECTION 15.8, PROGLOVE DOES NOT ASSUME AND SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR (I) FAILURE TO DELIVER THE PROTOTYPEAND/OR RELATED SERVICES WITHIN A SPECIFIED TIME PERIOD; (II) AVAILABILITY OR DELAYS IN DELIVERY OF THE PROTOTYPE; (III) FAILURE OR INTERRUPTION OF THE OPERATION OF THE PROTOTYPE; (IV)DAMAGES AND LOSSES OF COMPANY CAUSED BY USING THE PROTOTYPEOUTSIDE THE PROPER USE BY EMPLOYEES OR STAFF OF COMPANY; (V)PERSONAL INJURY OR DEATH CAUSED BY THE PRODUCT DUE TO COMPANY’S EMPLOYEE’S OR COMPANY’S CONTRACTOR’SMISUSE OF THE PRODUCT; (VI) COMPANY’S FAILURE TO DELETE DATA FROM A PROTOTYPEPRIOR TO RETURNING THE PROTOTYPETO PROGLOVE ; (VII) REPAIRS TO A COMPANY SITE DUE TO INSTALLATION OR DE-INSTALLATION OF THE PROTOTYPE; OR (VIII) DAMAGE CAUSED BY THE PROTOTYPEDUE DIRECTLY OR INDIRECTLY TO CAUSES BEYOND THE CONTROL OF PROGLOVE , INCLUDING, BUT NOT LIMITED TO ACTS OF GOD, ACTS OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, ACTS OR FAILURES TO ACT BY COMPANY, FIRES, FLOODS, EPIDEMICS, PANDEMICS, QUARANTINE RESTRICTIONS, CORROSIVE SUBSTANCES IN THE AIR OR OTHER HAZARDOUS ENVIRONMENTAL CONDITIONS, STRIKES, FREIGHT EMBARGOES, INABILITY TO OBTAIN MATERIALS OR SERVICES, COMMOTION, WAR, UNUSUALLY SEVERE WEATHER CONDITIONS OR DEFAULT OF SUBCONTRACTORS WHETHER OR NOT DUE TO ANY SUCH CAUSES. SUBJECT TO SECTION 15.8, IN NO EVENT IS PROGLOVE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, REMOTE, PUNITIVE OR CONSEQUENTIAL DAMAGES CAUSED BY ITS NEGLIGENCE OR OTHERWISE, NOR FOR REVENUE OR ACTUAL OR PROSPECTIVE PROFITS, SALES, BUSINESS ADVANTAGE, GOODWILL, OR ATTORNEY’S FEES, ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY BYUSE OF THE PROTOTYPE;IN NO EVENT IS PROGLOVE LIABLE FOR DAMAGES OR LOSSES OF COMPANY DUE TO LACK OF CERTIFICATION, MANUAL, LABELLING or DOCUMENTATIONOF THE PROTOTYPE,ECONOMIC LOSS; OR PROPERTY DAMAGES SUSTAINED BY COMPANY OR ANY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY LOSS OR DAMAGE RESULTING FROM ANY INTERRUPTION CAUSED BY THE PROTOTYPE. PROGLOVE ’S TOTAL LIABILITY FOR DAMAGES TO COMPANY OR OTHERS SHALL IN NO WAY EXCEED THE FAIR MARKET VALUE OF THE PROTOTYPE.
12.Evaluation Information.“Evaluation Information” means all information derived from Company’s use of the Prototype, including without limitation, feedback, suggestions, comments, insights, opinions, test results, ideas, know-how, data captured or generated by the Prototype, and machine dataassociated with the Prototype. Company agrees to participate in information collection activities as reasonably requested and instructed by ProGlove to the extent necessary for the Evaluation. Evaluation Information and other information provided by Company to ProGlovein connection with the Evaluationmay be used by ProGloveto improve or enhance ProGlove’s Prototypes. Company agrees that ProGloveshall own all Evaluation Information and hereby assigns all right, title and interest to all Evaluation Information to ProGlove. In the event and to the extent Company is deemed to have any ownership rights in any Evaluation Information that are not assigned to ProGlove by way of this Agreement,Companyherebygrants ProGloveanexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify,create derivative works ofand otherwise exploit such Evaluation Information without restriction.
13.1 This Agreementand ProGlove’s T&Csarethe entire understanding of the Parties with respect to the subject matter hereof.
13.2 No waiver, amendment or modification of any provision hereof or of any right or remedy hereunder will be effective unless made in writing and signed by the Party against whom such waiver, amendment or modification is sought to be enforced. No failure by a Party to exercise, and no delay by a Party in exercising, any right, power,or remedy with respect to the obligations secured hereby will operate as a waiver of any such right, power,or remedy.
13.3 Neither this Agreement nor any right or obligation hereunder may be assigned or delegated by Company (including by operation of law) without ProGlove’s express prior written consent, and any assignment or delegation without such consent will be void. Company hereby consents to an assignment of this Agreement by ProGlove and/or any of its subsidiaries or affiliates. This Agreement will be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties.
13.4 All notices and other required communications will be in writingand will be transmitted to the contactshown above and to the attention of the Legal Department (or any updated addresses provided by notice) either by (i)
personal delivery deemedaccepted at time of delivery; (ii) internationally recognized overnight delivery courier;or(iii) email with confirmed receipt.
13.5 If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, theParties will modify such provision of the extent possible to most nearly affect its intent. In any case, the remaining provisions of this Agreement shall not be affected.
13.6 This Agreement may be executed in any number of counterpart copies, each of which shall be deemed an original, but which together shall constitute a single instrument. All paragraph headings and captions used herein are for convenience only and shall not be part of the text or affect the meaning of this Agreement.
13.7 The Parties acknowledge that the terms, conditions and restrictions contained herein are reasonable and fairly bargained for. In the event Company breaches this Agreement, Company acknowledges that a breach would result in irreparable injury to ProGlove. Company agrees that the remedy at law for any breach will be inadequate, and that, in the event of such breach, ProGloveshall be entitled to seek preliminary and permanent injunctive relief as well as an reasonableaccounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which ProGlovemay be entitled.
13.8 Nothing in this Agreement shall have the effect of limiting or excluding either Party’s liability for: (i) death or personal injury caused by its negligence; (ii) fraudulent misrepresentation; or (iii) anything that cannot be excluded or limited by law.
14.Governing Law. This Agreement shall be governed by the laws of Germanywithout giving effect to the conflict of law principles thereof and excluding the Convention on Contracts for the International Sale of Goods. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
Exhibit A1.Definition of the Prototype:Prototypename, model number, and/or description: LEO Starter KitQuantity (if known): 12.Evalutation Period: 36 month
Exhibit B1.Proper use: Prototype can be used acc. to ProGlove User and Regulatry Guide: https://docs.proglove.com/en/documents-31228.html