IMPORTANT - READ CAREFULLY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. SUBJECT TO THIS AGREEMENT, MIMOSA NETWORKS, INC. (“MIMOSA”) AND/OR ITS LICENSORS GRANTS YOU (“YOU OR YOUR”) A NONEXCLUSIVE LICENSE TO USE THE MIMOSA PRODUCTS ACQUIRED BY YOU. SUCH PRODUCTS CONTAIN CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”). THIS AGREEMENT IMPOSES CERTAIN RESTRICTIONS ON YOUR USE OF THE LICENSED PRODUCT (DEFINED BELOW). BY CLICKING THE "AGREE" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE OR INSTALL THE LICENSED PRODUCT.
1. License to Licensed Products. For purposes of this Agreement, “Licensed Products” shall be defined as those Mimosa products ordered by You including any embedded software and/or proprietary databases, whether developed by Mimosa or a third party licensor, and any updates, upgrades, bug fixes, dot releases, version upgrades, or any similar changes, that may be made available from time to time. You are authorized by this license to use the Licensed Products in object code form only and solely in conjunction with applicable and permitted products or services and in accordance with the applicable documentation. You are granted a limited and nonexclusive license (without the right to sublicense) to use the software solely for the Licensed Product that You own and control, and solely for use in conjunction with the Licensed Products.
2. Restrictions. Without Mimosa’s consent, You may not modify or copy the Licensed Products (except to the extent specifically allowed by local law), remove the Licensed Products from the product on which it is installed, reverse engineer, decompile, disassemble, or derive source code from the Licensed Products. In addition to the above restrictions, You may not (a) publish, distribute, rent, lease, sell, sublicense, assign or otherwise transfer the Licensed Products or any part thereof, (b) create derivative works of or translate the Licensed Products, (c) permit application development use of the Licensed Products, (d) remove or obscure any copyright, trademark or other proprietary notices or legends from any portion of the Licensed Products or any associated documentation, (e) use the Licensed Products in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including, without limitation, power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments, (f) use the Licensed Products in violation of any federal, state or local law, regulation or rule, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. The Licensed Products contain technological protection or other security features designed to prevent unauthorized use of the Licensed Products, including features to protect against use of the Licensed Products beyond the scope of the license granted herein or in a manner prohibited herein. You agree that You shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
3. For U.S. Government End Users. The Licensed Product 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 Licensed Product 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.
4. Ownership. The Licensed Products are proprietary to Mimosa. You acknowledge and agree that: (a) the Licensed Products are protected under U.S. and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (b) Mimosa and its suppliers and/or licensors retain all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Licensed Products, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, including, without limitation, any Feedback from You incorporated into the Licensed Product as contemplated by Section 5 below, (c) there are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by Mimosa and (d) the Licensed Products are licensed, not sold and You acquire no ownership or other interest (other than the license rights expressly stated herein) in or to the Licensed Products.
5. Feedback. You may provide suggestions, comments or other feedback (“Feedback”) with respect to the Licensed Products. Feedback, even if designated as confidential by You, shall not create any confidentiality obligations on Mimosa. You agree that Mimosa is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback provided by You as Mimosa sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
7. Termination. Mimosa may terminate this Agreement if You fail to comply with any provision of this Agreement. Upon such termination, the license(s) granted hereunder shall also terminate and You agree to cease all use of the Licensed Products and associated documentation, installed or otherwise, and destroy or return to Mimosa all copies of the Licensed Products and accompanying documentation that are in Your possession or under Your control.
8. Your Warranty. You represent and warrant that You shall: (a) professionally install and activate the device in accordance with Mimosa’s published installation and activation procedures; (b) identify and interpret all applicable local, state, federal, and foreign laws and regulations in using the Licensed Products (including, without limitation, the operation of such Licensed Products within the legal power limits and Dynamic Frequency Selection (DFS)); (c) not use the Licensed Products in any manner that would violate the laws of any country in which You use the Licensed Products; and (d) if You use the Licensed Products in any frequency which requires a government license or approval, obtain and maintain such approval during the period in which You operate in such licensed band (and You agree to provide the requisite supporting documentation promptly upon Mimosa’s request). If You are using the Licensed Products to provide services to a third party and are accepting this Agreement on behalf of such third party, You represent and warrant that You (y) have the authority to accept the terms of this Agreement on behalf of such third party and (z) have bound such third party to terms and conditions that are substantially similar to and no less protective of Mimosa as this Agreement. You agree to defend, indemnify and hold Mimosa, its shareholders, employees and agents, or subcontractors harmless in any and all legal actions brought against Mimosa to the extent based upon Your breach of the foregoing warranties.
9. Mimosa Warranty. The warranty for Licensed Products shall be as set forth at www.mimosa.co/legal/warranty. Any Third Party Licensed Products (as defined below) provided under this Agreement shall be subject exclusively to the licensor’s warranty for such Licensed Products.
10. Warranty Disclaimer. The above warranties exclude damage or failure resulting from abuse, misuse, alteration, unauthorized movement, acts of nature or disaster, or unauthorized repair or incorrect installation. THE REMEDIES SET FORTH HEREIN ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, MIMOSA DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ON LICENSED PRODUCTS FURNISHED HEREUNDER INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MIMOSA MAKES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED PRODUCTS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT THE LICENSED PRODUCTS ARE NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE.
11. Limitation of Liability. IN NO EVENT SHALL MIMOSA, ITS SUPPLIERS OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF DATA, USE, BUSINESS OR PROFITS), OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES OR DAMAGES BASED ON UNAUTHORIZED USE OR ACCESS, WHETHER ARISING IN TORT, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF MIMOSA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MIMOSA, ITS SUPPLIERS’ OR ITS LICENSORS’ LIABILITY EXCEED THE VALUE OF THE LICENSED PRODUCTS GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS SHALL APPLY NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. No Liability for Emergency Services. MIMOSA DOES NOT SUPPORT NOR ARE THE SERVICES INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES INCLUDING BUT NOT LIMITED TO 911 DIALING. MIMOSA MAY NOT BE HELD RESPONSIBLE FOR ANY LIABILITY OR ANY LOSSES, AND YOU, ON BEHALF OF YOURSELF AND ALL PERSONS USING THE SERVICES THROUGH THE LICENSED PRODUCTS, HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION FOR LOSSES ARISING FROM OR RELATING TO ANY PARTY’S ATTEMPTS TO CONTACT EMERGENCY SERVICE PROVIDERS USING THE LICENSED PRODUCTS, INCLUDING BUT NOT LIMITED TO CALLS TO PUBLIC SAFETY ANSWERING POINTS. MIMOSA MAY NOT BE HELD LIABLE FOR ANY LOSSES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR (I) INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES, OR (II) FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT MIMOSA SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN MIMOSA AND THE END USER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES.
13. Export Regulations. You acknowledge that the Licensed Products, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with these laws and regulations and acknowledge that You have the responsibility to obtain any licenses to export, re-export, or import as may be required after delivery to You. You shall not, directly or indirectly, export, re-export or release the Licensed Products to, or make the Licensed Products accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. In particular, but without limitation, the Licensed Products may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Products, You represent and warrant that You are not located in any such country or on any such list. You acknowledge and agree that You shall strictly comply with all applicable laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to operating the Licensed Product, or exporting, re-exporting, releasing or otherwise making the Licensed Products available outside the U.S. You acknowledge and agree that Mimosa has no further responsibility after the initial delivery to You, and You hereby agree to indemnify and hold Mimosa harmless from and against all claim, loss, liability or damage suffered or incurred by Mimosa resulting from or related to Your failure to comply with all export or import regulations.
14. Confidentiality. You agree that the Licensed Products contain proprietary information, including trade secrets, know how and confidential information, that is the exclusive property of Mimosa. During the Term and at all times after the termination of this Agreement, You and Your employees and agents shall maintain the confidentiality of such proprietary information and not sell, license, publish, display, distribute, disclose or otherwise make available such proprietary information to any third party, nor use such information except as authorized by this Agreement.
15. General. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Mimosa’s prior written consent, which consent Mimosa may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving You (regardless of whether You are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Mimosa’s prior written consent is required. No delegation or other transfer will relieve You of any of Your obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this provision is void. Mimosa may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Your consent. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State California. Any legal claim, suit, action or proceeding arising out of this Agreement or the matters contemplated hereunder or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule and shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City of San Jose and Santa Clara County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and directed to the address provided by You to Mimosa in the activation process or, for Mimosa, as posted on Mimosa’s corporate website, and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. You agree that any terms and conditions of any purchase order or other instrument issued by You in connection with the Licensed Products that are in addition to or inconsistent with the terms and conditions of this Agreement shall be of no force or effect. This Agreement may only be amended, modified or supplemented by an agreement in writing by non-preprinted agreements clearly understood by both parties to be an amendment and signed by each party hereto. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. You agree that a material breach of this Agreement would cause irreparable injury to Mimosa, its suppliers and/or its licensors for which monetary damages would not be an adequate remedy and that Mimosa, its suppliers and its licensors shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
Certain components of the Licensed Products may use or incorporate third-party software programs and/or libraries (“Third Party Licensed Products”) in object and/or source code form. You agree that Mimosa’s third-party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this license intended to protect intellectual property rights in the Licensed Products (including the Third Party Licensed Products) and limit certain uses thereof; however, they have no obligations hereunder. Certain third party software may be copyrighted and subject to additional terms and conditions. You may access the third party copyright notices, terms and conditions at www.mimosa.co/legal/opensource. Any breach of any terms and conditions governing Third Party Licensed Products is also a breach of this Agreement.