Leia's Terms and Conditions
The general terms and conditions governing the purchase by Customer ("Customer" or "You") of products and services of Leia, Inc. (“Leia”) are set forth below (hereinafter referred to as the “Agreement”). The provision and delivery of specific Leia products and services to be governed by the terms of this Agreement shall be subject to the terms set forth in the Order Form.
When used in this Agreement, the following terms, when capitalized, shall have the meaning as set forth below:
- 1.1. Agreement Term: The term of this Agreement as set forth in Section 10.1 below.
- 1.2. Confidential Information: Any non-public or proprietary information of a party (the “Disclosing Party”) which is obtained by the other party (the “Receiving Party”) in the course of activity pursuant to this Agreement, including information which is disclosed on an Order Form, or in connection with the provision to, and use by, Customer of Leia products and services, whether such information is disclosed in oral, written, graphic, electronic or any other form. Confidential Information does not include any information that the Receiving Party can show: (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party; (b) is independently developed by the Receiving Party; (c) is acquired by the Receiving Party from another source that has the right to disclose such information without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. If a party is required to disclose Confidential Information pursuant to a legal requirement (e.g. order from a court or other applicable governmental agency or body), then that party is permitted to comply with such order provided it provides the other party with written notice of such disclosure requirement (unless the applicable order prohibits such notice), and limits to the disclose to only the information required to fulfill the order). Device Data shall be considered the Confidential Information of Leia.
- 1.3. Customer Data: Any data generated by Customer through operation of a Device.
- 1.4. Device: A Leia device delivered pursuant to an Accepted Order Form.
- 1.5. Device Data: Any data collected by Leia through operation of a Device by Customer or a third-party end user, which data Leia has access to, obtains, uses, processes, maintains or otherwise handles in connection with the performance of Services including, but not limited to, images and videos created using Leia’s proprietary technology or intellectual property (including, without limitation, Holopix images or videos).
- 1.6. EULA: That certain End User License Agreement applicable to LEIA software and approved by way of the download and use of said software, as modified from time to time.
- 1.7. Fees: The Device and accessory purchase prices, Device and accessory shipping fees, the Leia Service fees and any other fees payable by Customer as set forth in an Order Form.
- 1.8. Firmware: All software installed or embedded by Leia on the Devices.
- 1.9. Intellectual Property Rights: Collectively, all current and future worldwide patents, patent applications, copyrights (registered or otherwise), trademarks (registered or otherwise), domain names, trade secrets, inventions, discoveries, utility models, industrial designs, models, drawings, mask works, and all intellectual property and/or industrial property rights and applications for registration of such rights of the United States or any other multinational union, state, country or jurisdiction
- 1.10. Order Form: A mutually agreed order form pursuant to which Customer orders a Device and/or Leia Services.
- 1.11. Services: The services offered hereunder by Leia, from time to time, including, but not limited to: (a) collection by Leia of diagnostic and/or location information from a Device; (b) access to, download or upload of Holopix images to and from the Devices; (c) any application programming interfaces (APIs) provided by Leia, but only to the extent such services are identified on an Order Form; and (d) any professional services provided by Leia as set forth on a separate agreement to be negotiated and executed by the Parties as need be.
- 1.12. Software: Any software program or application, script, application programming interface (API) or other processor instructions of any type, to include Firmware, made available by Leia to Customer via the Devices and other computing resources, and otherwise utilized by Leia for the purpose of generating, accessing and processing Device Data. Software shall be deemed to include all, or any portion of, Leia’s software programs that it routinely provides to customers of the Services, including, without limitation, all enhancements, improvements, corrections, updates and upgrade releases to such software programs.
- 1.13. Third-Party Software: Any part of the Software not owned by or licensed to Leia, including open source software.
- ORDERS, DELIVERY, AND ACCEPTANCE
- 2.1. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of this Agreement shall prevail, except in the event an Order Form specifically references the provision of the Agreement that it supersedes, modifies, or replaces. In the event of a conflict between the terms of this Agreement or an Order Form and the terms of the EULA, the terms of the EULA shall prevail.
- 2.2. Devices will be shipped to the address designated on the Order Form.
- 2.3. Title and risk of loss will transfer to Customer Ex Works (Incoterms 2020) at Leia’s designated facility, with shipping costs to be borne by Customer for shipping.
2.4. Any time quoted for delivery is an estimate only and Leia shall not be liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery.
3.1. License Grant.
Leia hereby grants to Customer a non-exclusive, non-transferable license to: (a) access and use the Device and Leia Services; (b) use the Software solely for use in connection with the Leia Services; (c) generate Customer Data using the Device and/or Software; and (d) access, view, use, copy, modify, analyze and prepare derivative works from the Device Data. Customer may sell, license, modify and/or create derivative works from the Customer Data. Leia’s grant of rights to use the Device shall be perpetual.
- 3.2. Restrictions on License.
- 3.2.1. Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Devices or Software, in whole or in part.
- 3.2.2. With respect to any Device and associated Software, Customer will not be permitted to: (a) copy or otherwise reproduce, whether in whole or in part, any of same unless expressly permitted herein; (b) modify or create any derivative works of same, or any portion thereof; (c) sell, rent, loan, license, sublicense, distribute, assign or otherwise transfer same or any portion thereof, except to the extent expressly permitted hereunder; (d) cause or permit the disassembly, de-compilation or reverse engineering of a Device or Software or otherwise attempt to gain access to the source code of such Software; (e) develop any other software, product, or service including, but not limited to, any other software, product or service that is competitive with a Device or Services, or (f) cause or permit any third party to do any of the foregoing. Such restrictions shall survive the expiration or termination of this Agreement. Leia has the right to revoke the use of the Devices at any time for breach of this provision.
3.3. End User License Agreement. Customer acknowledges its consent to and acceptance of the EULA, the terms of which may be modified by Leia from time to time; provided that any changes shall not take effect for a period of thirty (30) days from Leia’s posting such modifications to the applicable URL, and provided that any such modifications shall not materially adversely impact the rights of Customer hereunder.
3.4. Third-Party Software. Third-Party Software shall be deemed to be incorporated within Software for the purposes of this Agreement and shall be licensed to Customer for use under the same license terms as set forth in Section 3.1, except where expressly provided to the contrary in this Agreement, another agreement between the parties, or a notification by Leia to Customer.
3.5. Unauthorized Use. Customer must notify Leia as soon as it becomes aware of any unauthorized use of or access to a Device or the Software by any person.
- UPDATES AND CHANGES
- 4.2. Changes to Devices and Software. Customer acknowledges and agrees that Leia may, at any time and for any reason, modify, discontinue, delete or restrict any aspect or feature of a Device or Software without consent from, or notice to, Customer; provided that, to the fullest extent practicable, any such modifications shall not materially adverse impact Customer’s rights hereunder or the performance of such Device and Software.
TRAINING AND SUPPORT SERVICES
- 5.1. During the time Customer is entitled to receive Leia Services, and subject to Section 8 (Exclusions), Leia or its designee will provide Customer with reasonable telephone or e-mail consultation and technical assistance regarding the Device and Leia Services during Leia’s regular working hours.
- 6.1. Device Warranty: Leia warrants to Customer that Devices will be free from defects in material and workmanship that prevent the Device from functioning in accordance with its specifications , as set forth in Leia’s Limited Warranty to Hardware Products (L001-01-01), which is incorporated herein by reference.
- 6.2. Software Warranty. The Software will be capable of successfully operating on a Device in accordance with the logic defined in the operator's manuals and published specifications, when the Device was received or are supplied with correct input data. Leia makes no warranty that the Software will operate with any hardware or software other than as specified in such specifications or that the Software will satisfy Customer’s own specific requirements.
- 6.3. Warranty Claims: Warranty claims must be made by notifying Leia in writing promptly after Customer learns of the facts supporting a warranty claim. Subject to Section 7 below (Warranty Exclusions) and the provisions of Leia's then-current applicable warranty policy, Leia will, at its discretion, either repair or replace any non-complying Device with a Device of equivalent functionality, and, if applicable, remedy any defects in the installation of the Device. Leia’s Warranty shall last for a period of twelve months from Reseller’s purchase except that, in the event that a Device has been sold or distributed to a resident of the European Union, Leia warrants that the Devices will be free from defects and subject to remedy in accordance with all EU directives, regulations and applicable EU country legislation.
- 6.4. THE REMEDIES IN THIS SECTION 6 ARE LEIA’S ONLY OBLIGATION AND CUSTOMER’S ONLY REMEDY FOR BREACH OF ANY WARRANTY.
- WARRANTY EXCLUSIONS
The Limited Warranty and support services provided by Leia do not include repair, replacement or correction of any defect, damage or malfunctions caused by: (a) accident, negligence, theft, vandalism, operator error, misuse or acts of God; (b) modifications, attachments, repairs or unauthorized parts replacements performed by Customer or any third party not authorized by Leia; or (c) use by Customer of hardware or software in combination with a Device and/or Software not provided or approved by Leia. Customer will be responsible for the cost of any support services provided by Leia caused by or relating to any of the foregoing.
- DISCLAIMER OF WARRANTIES
EXCEPT FOR THE LIMITED DEVICE WARRANTY SET FORTH IN SECTION 6 ABOVE, LEIA MAKES NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO THE DEVICE, DEVICE DATA OR THE LEIA SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, LEIA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. LEIA DOES NOT WARRANT THAT DEVICE DATA, CUSTOMER DATA OR OTHER CONTENT FROM THE DEVICES WILL BE AVAILABLE AT ALL TIMES, UNINTERRUPTED OR ERROR-FREE, OR THAT THE AND OTHER CONTENT PROVIDED BY LEIA TO CUSTOMER WILL ALWAYS BE ACCURATE, TIMELY OR COMPLETE.
FEES AND PAYMENT TERMS
- 9.1. All fees shall be due and payable as set forth in the Order Form.
- 9.2. Fees do not include applicable taxes and surcharges. Leia may charge, and Customer agrees to be responsible for, and pay at the same time as Fees are paid, applicable taxes (e.g. sales, use, value added and other similar levies, taxes or charges) and other government mandated fees in connection with the sale of the Devices and Leia Services, unless Customer has provided satisfactory certificates or other evidence of exemption. If Customer is required by law to make any deduction or withholding from any payment due hereunder to Leia, then the gross amount payable by Customer to Leia will be increased so that, after any such deduction or withholding, the net amount received by Leia will not be less than Leia would have received had no such deduction or withholding been required.
TERM, SUSPENSION AND TERMINATION
- 10.1. Agreement Term: The initial Agreement Term shall be for the duration specified on the Order Form, beginning on the effective date of the Order Form. Thereafter, this Agreement will automatically renew for one-month periods until either party elects to terminate by providing not less than thirty (30) days written notice to the other party or if the Agreement is otherwise terminated as set forth herein. The Agreement Term governs Customer’s access to and use of the Leia Services. The parties acknowledge Customer’s perpetual right to the use the Device, Customer Data, Device Data downloaded by Customer in advance of termination.
- 10.2. Sunset Provision. Leia may elect to discontinue a Device module, the Services or any other product or service offered by Leia hereunder, and to terminate the Agreement in its sole discretion without liability, in the event such discontinuation represents Leia’s cessation or discontinuation of an entire business line, product or service offering, and Leia provides affected customer with not less than three (3) months’ notice of such cessation or discontinuation
- 10.3. Survival. If the obligations of either party pursuant to an Order Form are terminated for any reason in accordance with this Section 10, the Leia Services will terminate effective as of the date of the termination, Customer will pay to Leia any Fees for any Device received or Leia Services provided prior to the effective date of the termination, and the parties' respective rights and obligations under Sections 6-9 and 11-17 of this Agreement will survive.
- 11.1. Customer will defend, indemnify and hold Leia and its respective affiliates, officers, employees and agents, harmless from and against any and all third-party claims and all associated damages, suits, proceedings, liens, penalties, liabilities, awards or expenses (including reasonable attorneys' fees) resulting from (a) Customer’s breach of its obligations under an Order Form, the EULA or this Agreement; or (b) a claim that Customer violated applicable state or federal laws or regulations in connection with his or her possession, distribution, installation or use of the Devices or the Leia Services.
- 11.2. Leia shall defend, indemnify and hold Customer harmless against third-party claims, and all associated damages, suits, proceedings, liens, penalties, liabilities, awards or expenses finally awarded by a court of competent jurisdiction or otherwise agreed by Leia to be paid, to the extent that such third-party claims allege that a Device or Leia Service infringes such third party’s intellectual property rights; provided, however, that Leia’s obligations hereunder shall not apply if and to the extent that the infringement or alleged infringement is caused by or otherwise results from (a) the use of the Device or the Leia Service other than as specifically authorized by Leia; (b) the combination or use of the Device or the Leia Service with non-Leia products or services, including, but not limited to, Customer’s products and services; (c) any modification or customization of a Device or Leia Service by or for Customer; or (d) any acts or omissions of Customer or any other third party.
- 11.3. Each party shall defend, indemnify, and hold the other party and its affiliates, officers, employees and agents, harmless from and against any and all third-party claims and all associated damages, suits, proceedings, liens, penalties liabilities, awards or expenses (including reasonable attorneys’ fees) resulting from bodily injury (including death) or damage to property, caused by the gross negligence, willful misconduct or other wrongful acts or omissions of the indemnifying party, its employees and authorized agents while on the other party’s premises, including any final monetary judgments, settlements, reasonable costs and reasonable attorney’s fees.
- 11.4. The party seeking indemnification hereunder shall: (a) provide the other party with prompt written notice of the claim; (b) allow the indemnifying party to control the defense and settlement of the claim, provided, however, that the indemnifying party shall not agree to any injunctive relief or settlement that obligates the indemnified party to perform any obligation make an admission of guilt, fault or culpability or incur any expense, without such indemnified party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned; (c) have the right to obtain its own counsel at its own expense; and (d) provide reasonable cooperation to the indemnifying party.
LIMITATION OF LIABILITY
- 12.1. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, EVEN IF THAT PARTY IS INFORMED THAT THOSE DAMAGES MAY OCCUR. EXCEPT FOR AN OBLIGATION TO PAY FOR PRODUCTS OR SERVICES DELIVERED HEREUNDER, A PARTY’S CUMULATIVE LIABILITY UNDER ANY LEGAL THEORY SHALL NOT EXCEED THE AMOUNT PAID TO LEIA UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PRIOR TO THE DATE THE LIABILITY ACCRUES FOR A CLAIM. THE FOREGOING LIMITATION SHALL NOT APPLY TO LIABILITY OF EITHER PARTY ARISING UNDER SECTION 11 (INDEMNIFICATION), SECTION 14 (CONFIDENTIALITY) AND/OR SECTION 15 (PROPRIETARY RIGHTS). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THOSE PARTICULAR LIMITATIONS MAY NOT APPLY TO YOU.
- 12.2. WITHOUT LIMITING THE FOREGOING, LEIA IS NOT RESPONSIBLE FOR LIABILITIES OF ANY KIND RESULTING FROM DELAYS IN DELIVERY OR IN PROVIDING LEIA SERVICES, REGARDLESS OF THE CAUSE OF THE DELAY. CUSTOMER UNDERSTANDS AND AGREES THAT LEIA SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM AN ALLEGED OR ACTUAL LACK OF SECURITY RELATING TO CUSTOMER'S USE OF THE LEIA SERVICES OR TO ANY CUSTOMER DATA.
With the exception of any claims relating to the protection of either party's Proprietary Rights or Confidential Information, which may require immediate injunctive or other equitable relief, it is agreed that any controversy between the parties related directly or indirectly to a Device, the Leia Services, or this Agreement will be settled by binding arbitration under the commercial rules of the American Arbitration Association (“AAA”), regardless of whether the controversy is based on contract, tort, strict liability or other legal theory. This Agreement does not allow class or collective arbitrations, or private attorney general theories of liability or prayers for relief, even if the AAA procedures or rules would. Notwithstanding any other provision of this Agreement, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s claim. The arbitration will be held in a mutually agreed location, by one arbitrator knowledgeable and experienced in the electronic information services industry and who is a licensed attorney. The arbitrator may award costs, including reasonable attorney fees, to the prevailing party as permitted pursuant to Section 17.7 hereof.
- GOVERNING LAW; WAIVER OF JURY TRIAL
Any controversy or claim arising out of or relating to this Agreement shall be settled pursuant to the laws of the State of California (without reference to conflict-of-laws principles), exclusively in a court of competent jurisdiction located in the State of California, Santa Clara County; provided that nothing shall restrict Company from seeking equitable relief in any court of competent jurisdiction to prevent or address a breach or threatened breach of this Agreement.
- 15.1. Each party as a Receiving Party will protect Confidential Information of the Disclosing Party against any unauthorized use or disclosure to the same extent that the Receiving Party protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will Receiving Party use less than a reasonable standard of care to protect such Confidential Information. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party for any purpose other than as: (a) reasonably necessary to perform its obligations under this Agreement; (b) expressly permitted by this Agreement; (c) required by applicable law (provided that the Receiving Party shall notify the Disclosing Party of such required disclosure promptly and cooperate with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit such required disclosure); or (d) consented to in writing by the Disclosing Party.
- 15.2. The parties further agree that any obligations to protect Confidential Information set forth herein shall survive termination of this Agreement for a period of three (3) years from the termination of this Agreement, except that as to any Confidential Information deemed a "trade secret" under applicable law, such obligations shall continue for so long as such information is deemed a trade secret.
- 15.3. The provisions of this Section 15 are necessary for the protection of the business and goodwill of the Disclosing Party and are considered by the Receiving Party to be reasonable for such purpose. The Receiving Party agrees that any breach of these provisions may cause the Disclosing Party substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, the Disclosing Party shall have the right to seek specific performance and other injunctive and equitable relief.
- 16.1. Customer acknowledges and agrees that a Device, the Leia Service, and Device Data may include patent, copyright, trademark, service mark, trade secrets, or other intellectual property rights (collectively “Proprietary Rights”) of Leia or its affiliates (including, with respect to the Leia Website, materials that may be proprietary to Leia), and that Leia and/or its affiliates retain title to and ownership of those Proprietary Rights and any and all improvements, modifications, fixes or enhancements made by or for Leia and/or its affiliates thereto, regardless of whether such items or services are created or suggested by Customer.
- 16.2. Customer agrees that with respect to Leia Services, it shall not, nor shall it permit any third party to (a) assign, transfer, lease, rent, sell, distribute or import such Leia Services to any third party; (b) except with the express written consent of Leia, combine, embed or incorporate the Leia Services into any other product or service other than any Customer-owned or developed interface for purposes of receiving the data feed delivered from the Leia Devices; (c) remove or alter any proprietary notices in the Leia Services; (d) use the Leia Services in connection with the transmission, sale, license, or delivery of any infringing, defamatory, offensive, or illegal products, services, or materials; (e) use the Leia Services in any manner that threatens the integrity, performance, or availability of the Leia Service; or (f) use the Leia Service in any manner that violates local, state or federal laws, regulations or orders.
- 16.3. All Device Data is, or shall be, and shall remain the property of Leia. Leia understands and acknowledges that Customer may use, manage, modify, summarize, maintain, create derivative works of Device Data. Customer acknowledges and agree that (i) Leia may retain and use all Device Data for purposes of providing the Software and Services to Customers and to third-party customers, and for conducting research, development and product improvement efforts; (ii) Leia may share Device Data with any third-party service providers, subject to obligations of confidentiality; (iii) Leia may disclose Device Data if required under applicable law, regulation or court order. Customer acknowledges that Device Data may be commercially exploited by or on behalf of Leia for commercial marketing purposes, subject to any permissions and restrictions set forth above and in this Agreement.
- 17.1. No amendment, change, modification or waiver to any provision of any Accepted Order Form or this Agreement will be binding unless signed by an authorized representative of each party.
- 17.2. EACH PART OF THIS AGREEMENT THAT LIMITS LIABILITY, DISCLAIMS WARRANTIES OR GUARANTEES, OR EXCLUDES DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED IN SUCH MANNER. IF ANY REMEDY FAILS TO FULFILL ITS ESSENTIAL PURPOSE, THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES REMAIN IN EFFECT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- 17.3. Except as otherwise expressly permitted in this Agreement, each party must deliver all notices or other communications required or permitted under an Accepted Order Form or this Agreement to the other party, in the case of Leia to [2440 Sand Hill road, suite 100, Menlo Park CA 94025 USA]; and in the case of Customer at the address listed on the signature page of the Accepted Order Form, by courier, by certified or registered mail (postage prepaid and return receipt requested), electronically with proof of receipt, or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- 17.4. Customer may not assign, sublease, sublicense or in any way transfer or assign any of its rights and obligations under this Agreement without Leia's prior written consent, including by operation of law, change of control, merger or otherwise.
- 17.5. This Agreement, together with any Order Form and any documents or policies referred to herein or in an Order Form, constitutes the entire agreement between Customer and Leia with respect to the Devices and the Leia Services and shall prevail over all prior or contemporaneous oral and written communications or agreements between Customer and Leia.
- 17.6. Any waiver or failure to enforce any provision of this Agreement or an Order Form on one occasion will not be deemed a waiver of any such provision or any other provision on any other occasion.
- 17.7. In any arbitration, mediation or other legal action or proceeding to enforce any right or remedy under an Order Form or this Agreement, the prevailing party will be entitled to recover, in addition to any other relief to which it may be entitled, its reasonable attorneys' fees and other costs incurred in that action or proceeding.
- 17.8. If any provision of an Order Form or this Agreement is held by a court of competent jurisdiction to be unenforceable, the enforceability of the remaining provisions of the Order Form and this Agreement will not be affected and the unenforceable provision will be deemed modified such that it is enforceable and accomplishes the intention of the parties to the fullest extent possible.
- 17.9. This Agreement may be executed in counterparts delivered electronically, each of which shall constitute an original and together shall constitute one and the same instrument.