ETHERCAT URCAP END USER SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE SOFTWARE OR A PRODUCT IN WHICH THE SOFTWARE IS EMBEDDED, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) AND AGREE TO BE BOUND BY THEM. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.

1               Scope of Agreement

This Agreement sets forth the terms and conditions applicable to the license granted herein by Universal Robots A/S (“Universal Robots”) for the EtherCAT URCap (“EtherCAT URCap”) for the External Axis Feature Product (“External Axis Feature”). The EtherCAT URCap may be provided on: hard drives of a robot or external processing devices; memory devices; via download from Universal Robots website; or through integrated circuits (collectively the “Products”). The term EtherCAT URCap includes all (i) Universal Robots or third-party computer information or software which is a part of the External Axis Feature; (ii) related explanatory written materials or files; and (iii) all patches, error corrections, updates, upgrades, enhancements, modifications, additional software components provided by Universal Robots to be embedded in the External Axis Feature. This Agreement governs the license to use the EtherCAT URCap by you, the purchaser or user of an External Axis Feature (“Licensee”). Universal Robots and Licensee are each a Party and collectively, the Parties.

2               License Grant and Restrictions

2.1            Universal Robots grants to Licensee, and Licensee accepts, a non-exclusive, non-transferable license during the term of this Agreement to use the EtherCAT URCap solely in connection with the Universal Robots External Axis Feature in which the EtherCAT URCap is embedded and only as authorized in and subject to this Agreement. Licensee agrees that (1) Licensee may only use the EtherCAT URCap in accordance with the terms of this Agreement; (2) Licensee may only use the EtherCAT URCap for its own internal business purpose and within the scope of the EtherCAT URCap application with respect to one (1) External Axis Feature; (3) Licensee will not pledge, lease, rent or assign to, or share Licensee’s rights or obligations under this Agreement with, any third party; (4) except as permitted by mandatory law, Licensee shall not, under any circumstances, reverse engineer, decompile, disassemble or otherwise attempt to discover, reconstruct or identify the source code of the EtherCAT URCap or any user interface techniques, algorithms, logic, protocol, or specifications included, incorporated, or implemented herein; (5) the EtherCAT URCap shall not be used in any way which would violate any Export Laws (as defined in Section 8 herein); and (6) Licensee will not transfer or make the EtherCAT URCap available to any third party, or create derivative works of the EtherCAT URCap, without Universal Robots’ prior written consent, and in the event of any violation of this Section 2.1, Universal Robots is not liable for any damage or harm caused by its EtherCAT URCap, the External Axis Feature, or Products, to Licensee or any third party.

2.2            The EtherCAT URCap is the intellectual property of and is owned by Universal Robots and/or its licensors. The structure, organization and code of the EtherCAT URCap are valuable trade secrets and confidential information of Universal Robots and/or its licensors. Unless permitted by law or specifically and expressly permitted by Universal Robots in writing, Licensee shall not modify, adapt or translate the EtherCAT URCap. Universal Robots’ trademarks shall be used only in accordance with accepted trademark practice, including identification of trademark owners' names. Trademarks shall only be used to identify printed output produced by the EtherCAT URCap and such use of any trademark does not give Licensee any rights of ownership in that trademark. Except for the license granted in Section 2 above, this Agreement does not grant Licensee any intellectual property rights in or licenses to the EtherCAT URCap and all rights and licenses not expressly granted herein are reserved by Universal Robots. Licensee agrees that all right, title and interest in the EtherCAT URCap, including the intellectual property, is and remains the sole property of Universal Robots and/or its licensors.

3               Consideration

3.1            The purchase price paid by Licensee to Universal Robots for the External Axis Feature includes the license fee for the license to use the EtherCAT URCap granted under this Agreement.

3.2            Universal Robots reserves the right to demand a license fee for future versions, updates, upgrades, enhancements and/or additional software components provided by Universal Robots to be embedded in or used in connection with the External Axis Feature.

4               Data Rights

4.1            For the purposes of this Section 4, “Licensee Data” means any and all data and information uploaded or submitted into, or captured by, the EtherCAT URCap in the course of Licensee’s use or operation of the External Axis Feature, including without limitation runtime logs and performance data. As between Universal Robots and Licensee, Licensee is and shall remain the sole and exclusive owner of all rights in and to Licensee Data.

4.2            Licensee grants to Universal Robots, and Universal Robots accepts, a nonexclusive, worldwide, transferable, sublicensable (to its affiliates, subcontractors, and service providers), irrevocable, royalty-free, fully paid-up license to:

4.2.1            Access Licensee Data, either directly or through remote access, or through its direct provision to Universal Robots by Licensee in accordance with instructions provided from time to time;

4.2.2            Use Licensee Data to enhance and improve the EtherCAT URCap and the External Axis Feature and for other development, diagnostic, and corrective purposes in connection therewith;

4.2.3            Use Licensee Data to create statistical analyses and algorithms for research and development purposes, and for benchmarking purposes, alone or with other users’ data (“R&D Analyses”), the rights to which R&D Analyses are and shall be owned solely and exclusively by Universal Robots without restriction; and

4.2.4            Disclose the Licensee Data to its subcontractors and service providers, and to other third parties as authorized by Licensee.

4.3            It is understood and agreed that, in addition to R&D Analyses, Universal Robots may also compile statistical and other information related to the performance, operation, and use of the EtherCAT URCap and the External Axis Feature, independent of Licensee Data (“Product Analyses”), the rights to which Product Analyses are and shall be owned solely and exclusively by Universal Robots without restriction. Universal Robots agrees, however, that neither R&D Analyses nor Product Analyses will incorporate Licensee Data in a form that could serve to identify Licensee or any individual. Licensee is granted no rights or licenses with respect to R&D Analyses or Product Analyses.

5               Term and Termination

5.1            This Agreement is effective upon Licensee’s receipt and use of the EtherCAT URCap and shall continue until terminated pursuant to this Section 5. Licensee may terminate this Agreement by terminating its use of the EtherCAT URCap. Universal Robots may terminate this Agreement for convenience by providing ninety (90) days’ notice to Licensee.

5.2            Universal Robots may terminate this Agreement for cause at any time upon the occurrence of any the following events: (1) breach by Licensee of any term hereof that is not cured within thirty (30) days written notice of such default, if cure is possible, otherwise this Agreement is terminated upon breach with immediate effect; (2) Licensee’s failure to pay any purchase price or license fees when due and owning under this Agreement, if applicable; or (3) Licensee’s default under any other agreement with Universal Robots.

5.3            Upon termination, Licensee shall immediately cease to use the EtherCAT URCap. Sections 4 through 14 shall survive termination.

6               Warrenty and Disclaimer

THE SOFTWARE AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND UNIVERSAL ROBOTS MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE DOCUMENTATION AND SOFTWARE AND HEREBY EXPRESSLY EXCLUDES ANY WARRANTIES WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR ANY OTHER WARRANTIES OR GUARANTEES THAT MAY ARISE FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER UNIVERSAL ROBOTS NOR ITS SUPPLIERS, INCLUDING, WITHOUT LIMITATION, ITS LICENSORS, MAKES ANY REPRESENTATION, WARRANTY, OR OTHER COMMITMENT REGARDING (1) THE USE OR INABILITY TO USE THE SOFTWARE; OR (2) ANY RESULTS OF SUCH USE IN TERMS OF CORRECTNESS, ACCURACY, OR RELIABILITY. LICENSEE UNDERSTANDS AND AGREES THAT IT ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE.  

7               Limitation of Liability and Remedies

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL UNIVERSAL ROBOTS BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY LICENSEE, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION OR OTHER DATA, THE COST OF RECOVERING SUCH LOST INFORMATION OR DATA, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE REGARDLESS OF WHETHER UNIVERSAL ROBOTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNIVERSAL ROBOTS’ AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO THE GREATER OF: (1) THE ANNUAL LICENSE FEE PAID BY LICENSEE FOR USE OF THE SOFTWARE; OR (2) ONE HUNDRED U.S. DOLLARS ($100.00). THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT.

8               Export Laws

Licensee agrees to comply with all applicable laws and regulations, including export laws of the United States and any other applicable country or jurisdiction. Licensee agrees that the EtherCAT URCap will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other country’s export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the EtherCAT URCap is identified as export controlled items under the Export Laws, Licensee represents and warrants that Licensee is not a citizen, or otherwise located within, an embargoed nation (currently, including without limitation the following countries: Iran, Syria, Sudan, Venezuela, Cuba and North Korea) and that Licensee is not otherwise prohibited under the Export Laws from receiving the EtherCAT URCap. The EtherCAT URCap shall under no circumstances be used by Licensee for planning, construction, maintenance, operation or use, directly or indirectly, in nuclear power plants, missile technology, chemical or biological weapons applications or flight, navigation or communication of aircraft or ground support equipment.

9               Indemnification

Licensee shall defend, indemnify and hold Universal Robots and its affiliates, employees and agents harmless, from and against all sums, claims, costs, duties, liabilities, losses, obligations, suits, actions, damages, penalties, awards, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Universal Robots may incur or be obligated to pay as a result of Licensee’s unauthorized use, modification, resale, transfer, shipment, or export of the EtherCAT URCap.

10             Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Denmark, without giving effect to conflict of laws provisions thereof. The parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or in connection with this Agreement shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be Copenhagen, Denmark. The arbitration shall be conducted in the English language. The foregoing notwithstanding, Universal Robots may seek preliminary, temporary, or permanent injunctive relief and other equitable remedies in any court of competent jurisdiction prior to or during arbitration and may enforce the award of the arbitrator in any court of competent jurisdiction.

11             Confidentiality

Each Party (the “Receiving Party”) may receive or be given access to the business, product or service, or customer information of the other Party (the “Disclosing Party”), that is marked or otherwise identified as “proprietary” or “confidential” or that is of such a nature that a reasonable person would understand such information to be proprietary or confidential (“Confidential Information”). A Party's Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the Receiving Party; (b) was in the other Party's lawful possession without any obligations of confidentiality before the disclosure; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party, which independent development can be shown by written evidence; or (e) is required to be disclosed by applicable law, by any court of competent jurisdiction or by any regulatory or administrative body, provided the Receiving Party will promptly notify the Disclosing Party upon learning of any such legal requirement, and reasonably cooperate with the Disclosing Party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency.

The Parties hereby agree:

• not to use Confidential Information received from the other Party for any purpose other than for the purpose of this Agreement; and
• to maintain Confidential Information received from the other Party in strict confidence and to take all reasonable precautions to prevent third parties from getting unauthorized access to Confidential Information, and to ensure the security and confidentiality of all Confidential Information.

12             Entirety of the Agreement

This Agreement shall constitute the complete, final and exclusive agreement between Universal Robots and Licensee with respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the Parties relating to this subject matter hereof; provided that all confidentiality and mutual non-disclosure agreements previously executed by Licensee and Universal Robots shall remain in full force and effect. If any of the terms and conditions of this Agreement is held by any competent court or authority to be invalid or unenforceable in whole or part, the validity of the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect. The additional or conflicting terms of Licensee’s purchase order or other ordering documents (other than quantity, price, and delivery terms) shall not amend the terms of this Agreement and are hereby rejected.

13             Changes to the Agreement

Universal Robots reserves the right, in its sole and absolute discretion, to change the terms of the Agreement, including without limitation, to demand a license fee, cf. Section 3.2, by providing ninety (90) days’ notice to Licensee.

14            Legal Notice

The EtherCAT Technology and the trade name “EtherCAT” are the intellectual property of, and protected by Beckhoff Automation GmbH. You may review, edit, compile, link, debug the EtherCAT Master Code, provided that before implementing into a product, using, selling or otherwise distributing an EtherCAT Master License is obtained from Beckhoff Automation GmbH & Co.KG.

To receive a copy of the EtherCAT Master License contact Beckhoff Automation GmbH & Co.KG, Huelshorstweg 20, D-33415 Verl, Germany (www.beckhoff.com).