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Evaluation License Agreement
This Evaluation License Agreement (“Agreement”), sets out the terms and conditions under which EarSwitch Ltd, a company registered in England and Wales under company number 12358776 and with registered address at Office 75 Future Space UWE North Gate, Filton Road, Bristol, England, BS34 8RB (“EarSwitch”) licences the Solution and associated deliverables. This Evaluation Agreement is only available to corporate licensees. If you do not represent a corporate entity, you must not proceed with agreeing to these terms. By clicking on the “I accept the terms of the Evaluation Agreement” button at the end of this Agreement, you agree that you have read and understood these terms, and that the entity you represent is bound by this Agreement and becomes the “Licensee”. You represent and warrant you have authority accept these terms on behalf of the Licensee entity and bind the Licensee to them.
1. Definitions
In this Agreement, the following words shall have the following meanings:
“Hardware” - Shall mean the hardware components of the Solution.
“Deliverables” - Shall mean the Solution and associated Documentation.
“Documentation” - Shall mean any user guide to the Solution and any other literature or data supplied with the same Solution by EarSwitch.
“Evaluation Fee” - Shall mean the fee of £3995 (excluding VAT) to be paid by the Licensee to EarSwitch.
“Evaluation Period” - Shall mean the period of 4 (four) months, commencing on the date of execution of this Agreement, during which the Licensee is permitted to use, evaluate and test the Solution in accordance with the provisions of this Agreement.
“Field of Use” - Shall mean in-ear photoplethysmography (PPG) solution for heartrate monitoring and /or pulse oximetry.
“Software” - Shall mean the software components of the Solution provided as a compiled application on the Hardware.
“Solution” - Shall mean the EarMetrics solution to be evaluated under this Agreement. EarMetrics is an in-ear photoplethysmography (PPG) solution for heartrate monitoring and / or pulse oximetry.
It comprises a measurement device in communication with a computing device (such as a smart phone).
The measurement device comprises one or more sensors arranged to capture sensor data from the ear canal in use. The Software, running on the computing device, receives the captured data and processes it to display data indicative of blood oxygen levels and / or heart rate.
2. Limited Evaluation Licence
2.1. In consideration of the Licensee paying the Evaluation Fee to EarSwitch, EarSwitch hereby grants the Licensee the non-exclusive, non-transferable, non-sublicensable right to use the Deliverables for the Field of Use and for the purpose of internal evaluation only during the Evaluation Period and in accordance with the provisions of this Agreement. No commercial deployment or use of the Deliverables is permitted under this Agreement and any commercial use of the Deliverables shall be subject to the agreement of EarSwitch and the execution of a separate commercial license agreement by EarSwitch and the Licensee.
2.2. The Licensee may at any time during the Evaluation Period, and must at the end of the Evaluation Period if the Parties do not agree to enter into a further licence, return to EarSwitch the Deliverables and all other material containing information concerning the Solution which has either been supplied to it or of which it has become aware, whereupon the Licensee’s obligations under this Agreement shall cease, other than those under clauses 5 and 8 of this Agreement which are expressed to continue after its termination.
2.3. The Licensee acknowledges that the Software may contain software components developed by third-parties and licensed under one or more licences, including open-source software licences. Such third-party software components are not licensed to the Licensee under this Agreement by EarSwitch. Accordingly, the Licensee shall use such open-source software and/or third-party software strictly in accordance with the applicable open-source licence terms or third-party licence terms.
2.4. The ownership of, and all title and interest in and to, the Deliverables, shall at all times remain with EarSwitch or its licensors, as the case may be. All rights not expressly granted in this Agreement remain reserved to EarSwitch.
3. Licensee’s Obligations
3.1. During the Evaluation Period the Licensee shall comply with the terms of this Agreement.
3.2. The Licensee acknowledges and agrees that:
(a) the Hardware is provided to the Licensee on a temporary basis and the Licensee shall be responsible and liable for the Hardware whilst in its possession;
(b) title in the Hardware shall remain with EarSwitch; and
(c) risk in the Hardware shall transfer to the Licensee on delivery of such Hardware and shall remain with the Licensee until such time as the Hardware is returned to EarSwitch.
3.3. The Licensee acknowledges and agrees that it shall have no right to, shall not, and shall not allow any person to:
(a) sublicense, assign, convey, transfer, share, distribute, propagate, the Deliverables;
(b) merge (including, without limitation, using the Software in conjunction with any hardware component which is not a part of the Solution), modify, enhance, adapt, translate, make improvements to, create derivative works based upon, the Deliverables;
(c) disassemble (including, without limitation, using any component of the Hardware in conjunction with any hardware or software which is not a part of the Solution), decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, a Deliverable to the extent permitted by applicable mandatory law;
(d) change, distort, obscure, delete or remove any patent, trade mark, copyright or other proprietary notices which appear in writing on or in a Deliverable;
(e) impose any condition or obligation on Deliverables under copyleft terms (including, without limitation, any obligation to disclose, publish and/or license any code in the Deliverables);
(f) operate or make use of a Deliverable that in any way violates applicable laws and regulations; and/or
(g) take or permit any other action which could impair or encumber EarSwitch’s ownership of or intellectual property rights in the Deliverables.
4. References to Licensee’s use
EarSwitch may state in any publicity and other promotional materials that the Licensee is a user of the Solution during the existence of this Agreement. The Licensee is under no obligation to provide any reference or other information relating to the Solution.
5. Confidentiality
5.1. During and after the Evaluation Period the Licensee shall treat the Deliverables and all information concerning the deliverables which is either supplied to it or of which it becomes aware as confidential and accordingly shall not:
(a) disclose any such information to any third party; or
(b) disclose any such information to any employee who has not acknowledged in writing the confidentiality of such information; or
(c) use any such information other than for the purpose of its own internal use, testing and evaluation of the Solution except to the extent that such information is or becomes public knowledge other than through any fault of EarSwitch and shall at the request of EarSwitch and at its own cost take such proceedings as may be necessary to preserve the confidentiality of such information.
5.2 For the avoidance of doubt, the provisions of this Clause 5 shall survive the expiration of this Agreement for a period of 5 (five) years.
6. Term and Termination
6.1. This Agreement commences upon execution of this Agreement and, subject to earlier termination as specified herein, shall remain in force for the Evaluation Period.
6.2. EarSwitch may terminate this Agreement immediately upon written notice to the Licensee if the Licensee is in material breach of this Agreement.
6.3. On expiry or termination of this Agreement, all licences granted herein immediately terminate. The Licensee must immediately stop using the Deliverables; return to EarSwitch all Deliverables and any materials provided by EarSwitch; delete any electronic copies of the Deliverables or other materials provided by EarSwitch and on reasonable request, confirm to EarSwitch that it has done so.
7. Exclusion of warranties
7.1. The Licensee accepts and acknowledges that this Agreement does not set out any warranty in respect of the Deliverables other than that save as expressly provided for in this Agreement and any condition or warranty implied by law regarding non-infringement of intellectual property rights or as to the quality or fitness for purpose of the Deliverables, or as to any services provided hereunder in relation to the Deliverables is hereby excluded to the fullest extent permitted by law. For the avoidance of doubt, EarSwitch gives no warranty, in respect of:
(a) Any failure of the Deliverables to operate due to changes in the operating environment or in any operating system after the Commencement Date; or
(b) Any failure of the functions provided by the Deliverables to meet the Licensee’s requirements or those of any user or to operate in combination with any hardware or other software which may be selected for use by the Licensee or any user.
7.2. The Licensee acknowledges and accepts:
(a) That during the Evaluation Period the Deliverables are still under development and, will be for test and evaluation purposes only;
(b) That EarSwitch has not produced the Deliverables to meet the Licensee’s own specification or that of any user;
(c) That the Deliverables cannot be tested in every possible combination and operating environment and that it is not possible to produce economically (if at all) computer programs known to be error free or which operate in an uninterrupted manner and that not all errors are necessarily capable of rectification.
7.3. EarSwitch shall not be liable to the Licensee for any indirect or consequential loss, damage (including loss and / or corruption of data) or expense of any kind whatsoever arising out of or in connection with the Deliverables or this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
7.4. Subject always to clause 7.3, EarSwitch’s liability in contract, tort, negligence, breach of statutory duty or otherwise with respect to any claim arising in respect of its acts or omissions under or in connection with this Agreement shall be limited to the sums received by EarSwitch at the date of the claim relating to such act or omission or GBP£10,000 (ten thousand British Pounds) whichever is the lesser.
8. Indemnity
8.1. The Licensee shall indemnify, defend and hold harmless EarSwitch, its officers, employees, representatives and agents (the “Indemnitees”) against all third party Claims which may be asserted against or suffered by any of the Indemnitees and which relate to the use of the Deliverables by or on behalf of the Licensee or by any third party, including without limitation any breach of the license terms (Clause 2) by Licensee, breach of the Licensee’s obligations under Clause 3 and / or claims based on product liability laws.
8.2. For the purposes of this clause 8, “Claims” shall mean all demands, claims and liability (whether criminal or civil, in contract tort or otherwise) for losses, damages, legal costs and other expenses of any nature whatsoever.
8.3. For the avoidance of doubt the indemnity shall apply during and after the termination or expiration of this Agreement, howsoever arising.
9. Privacy and Personal Data
EarSwitch shall not collect or process personal data of any individuals under this Agreement. The Licensee shall be solely responsible for complying with all applicable privacy laws regarding any use of personal data which it engages in.
10. General
10.1. Audits. EarSwitch has the right (no more than once per calendar year) to audit the Licensees’s records related to the Licensee’s payment obligations hereunder and to ensure compliance with the terms of this Agreement, upon reasonable written notice. Such audits may be conducted by EarSwitch personnel or by an independent third-party auditor appointed by EarSwitch. The Licensee will grant EarSwitch and/or an independent third-party auditor appointed by EarSwitch reasonable access to its personnel, records and facilities for such purpose. All such audits will be conducted during normal business hours and all information obtained during such audits shall be retained in confidence in accordance with the provisions of Clause 5.
10.2. Certification. EarSwitch reserves the right to require that the Licensee certify as to its usage and compliance with this Agreement.
10.3. The Licensee may not assign its rights and obligations under this Agreement and any attempt to do shall be ineffective.
10.4. This Agreement shall not be amended except in writing by duly authorised signatories of the Parties. In the event that any or any part of the terms, conditions or provisions contained in this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid and enforceable to the fullest extent permitted.
10.5. This Agreement shall be governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
10.6. Notwithstanding Clause 9.5, the Licensee acknowledges that damages may not be an adequate remedy for a breach by Licensee of any of its obligations under this Agreement, and confirms that EarSwitch will be entitled to the remedies of injunction, interdict, specific performance or other equitable remedy in any court of competent jurisdiction, wherever situated for any threatened or actual breach of any such obligation or undertaking.
10.7. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
10.8. This Agreement constitutes the entire agreement and understanding between the Parties relating to the matters referred to in this Agreement and supersedes and extinguishes any other agreement or understanding between the Parties relating to the same.