DARWINO COMMUNITY EDITION LICENSE AGREEMENT

Version Effective Date:  January [  ] , 2016

IMPORTANT NOTICE – READ CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE NAMED ABOVE

            THIS LICENSE AGREEMENT (the “Agreement”) is a legal agreement made by and between Darwino, Inc., a Delaware corporation (“Darwino”) and you (the “Licensee”) .

DARWINO IS WILLING TO LICENSE THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL THE TERMS CONTAINED IN THE LICENSE AGREEMENT.  PLEASE READ THE TERMS CAREFULLY.  BY INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU WILL INDICATE YOUR AGREEMENT TO SUCH TERMS. ALSO, BY INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THE CONNECTOR LICENSE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS.  IF YOU DO NOT ACCEPT THESE TERMS, YOU SHOULD NOT INSTALL THE SOFTWARE.

RECITALS

A. Darwino is developing a commercial version of its new software product called “Darwino” (the “Software”).

B. Darwino wishes to supply the Software to the Licensee subject to the terms and conditions set forth in this Agreement for purposes of obtaining suggestions, comments and feedback from the Licensee.  The “Software” shall be deemed to include a “read only” version of the source code to the Accessible Code  and the Runtime Code which may be used by Licensee solely for purposes of debugging and troubleshooting the Software, and

1. DEFINITIONS.              The capitalized terms set forth below shall have the following meanings.

“Accessible Code” means a read only version of the source code  for the core components of the Software.

“Effective Date” has the meaning set forth in the preamble to this Agreement.

“Runtime Code” means a read only version of the source code for the runtime for the Software.

            “Samples Code” means source code for samples of applications provided by Darwino.

“Software” means the current version of Darwino’s software application, including the Accessible Code, the Runtime Code and the Samples Code which will be provided to the Licensee through such electronic or other means as determined by Darwino, together with any improvements and modifications and any documentation generally provided to licensees under similar agreements.

“Licensee Personnel” means those employees and independent contractors of the Licensee whom the Licensee reasonably determines should have access to the Software for the purposes set forth herein. 

2. LICENSE GRANT.

2.1. Darwino hereby grants to Licensee, upon the terms and conditions contained herein, and except with respect to the Samples Code as described herein, a royalty-fee, non-transferable, non-exclusive revocable right and license during the Term for Licensee Personnel to use the Software, including  the Accessible Code and the Runtime Code, for debugging, troubleshooting and informational purposes only. Licensee shall have no right to deploy the Software, directly or indirectly, for any production or commercial purposes, including any use for commercial advantage or monetary compensation, without purchasing a separate license from Darwino.  Licensee is permitted to use the Accessible Code and the Runtime Code to develop bug fixes and related troubleshooting features solely for purposes of using the Software under this Agreement.    Licensee shall be permitted to use the Samples Code on an open source basis, subject to the terms of the MIT License.  See opensource.org/licenses/MIT. 

2.2. Darwino will not provide Licensee with any other software or services (including any support or maintenance services) relating to the Software .

3. NO RIGHT TO SUBLICENSE OR ASSIGN; SCOPE OF USE.  Other than the Samples Code, Licensee’s rights under this Agreement may not be assigned, licensed, sublicensed or otherwise transferred voluntarily or by operation of law.  Any attempted assignment, license, sublicense or transfer, whether voluntary or involuntary, shall be void and shall be grounds for termination of this Agreement.  .  Licensee may not distribute or resell the Software, including through an OEM distribution model, without entering into a separate license agreement with Darwino.

4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE.  Licensee represents and warrants to Darwino that Licensee is not, and shall not become during the Term, a software vendor, service bureau or competitor of Darwino, and that, without limiting the generality of the confidentiality restrictions set forth below, under no circumstances will Licensee allow a software vendor, service bureau or competitor of Darwino to access, view or use the Software or any portion thereof.

5. ACKNOWLEDGMENT OF OWNERSHIP.  Licensee acknowledges and agrees that the Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces and “know-how” embodying or imbedded in the Software, including all copyright and other intellectual property rights, is the sole property of Darwino, that Darwino is the owner of the Software, and that Darwino will at all times retain title to the Software.

6. ADDITIONAL RESTRICTIONS . 

6.1. The Software will be provided to Licensee through such electronic or other means as determined by Darwino.  Other than the Samples Code, in no event will Licensee copy or cause or permit any third party to copy the Software , for backup purposes or otherwise.  Licensee may not create derivative works based on the Software may not merge the Software with another product and may not remove or obscure any proprietary notices or labels on the Software including any trademark or copyright notices.

6.2. Licensee shall have no right to encrypt any of the Software on any mobile devices, nor may Licensee make any connections to any corporate directory.

7. NO REVERSE ENGINEERING.  The Licensee hereby agrees not to modify, translate, decompile, disassemble or reverse engineer the Software or authorize, assist or permit any third party to modify, translate, decompile, disassemble or reverse engineer the Software.

8. MODIFICATIONS AND CONTRIBUTIONS.

             8.1       As further set forth in Section 2.1, Licensee has a limited license with respect to the Software, and, other than the Samples Code, Licensee shall have no right to make any modifications to the Software.

          8.2       The term 'Contribution' or ‘contributed materials’ means any source code, object code, patch, tool, sample, graphic, specification, manual, documentation, or any other material posted, submitted or otherwise contributed by Licensee to the Software, whether currently, in the past or in the future, and whether communicated electronically, verbally or in writing.  While Licensee has no right to make any modifications to the Software, to the extent that Licensee does make any Contribution, Darwino is under no obligation to accept any such Contribution or include any such Contribution in any software or documentation. 

         8.3       To the extent that Licensee’s Contributions do not contain any pre-existing Licensee intellectual property rights, Licensee hereby transfers and assigns to Darwino all right, title and interest in and to all copyrights, and other intellectual property rights including the right to sublicense these same rights to third parties.  To the extent that Licensee’s Contributions do contain any pre-existing Licensee intellectual property rights, Licensee grants Darwino a perpetual, irrevocable, non-exclusive, worldwide royalty tax free license to exercise all rights, including all copyright rights, under those intellectual property rights, including the right to sublicense these same rights to third parties.  Licensee further:

• agrees that Darwino may do all things in relation to the Contribution, including making a derivative work of the Contribution;

• agrees that Darwino may register a copyright in the Contribution and exercise all ownership rights associated with it; and

• agrees that Darwino has no duty to consult with, obtain the consent of, pay or render an accounting to Licensee for any use or distribution of the Contribution.

9. DISCLAIMER OF WARRANTIES.  THE SOFTWARE IS LICENSED “AS IS.”  DARWINO MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE SOFTWARE, ANY SERVICES PROVIDED TO LICENSEE, OR ANY OTHER MATTER WHATSOEVER, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES REGARDING THE CONDITION OF THE SOFTWARE, ITS MERCHANTABILITY,  FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT.  DARWINO DOES NOT WARRANT THAT THE SOFTWARE WILL MEET ALL OF LICENSEE’S BUSINESS REQUIREMENTS OR WILL OPERATE IN A PARTICULAR COMPUTER ENVIRONMENT OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR VIRUS FREE.

10. LIMITATION OF LIABILITY.  IN NO EVENT WILL DARWINO’S TOTAL LIABILITY TO LICENSEE HEREUNDER EXCEED THE SUM OF TEN DOLLARS.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL DARWINO BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF GOODWILL RESULTING FROM OR RELATING TO THE DELIVERY (OR THE FAILURE THEREOF), INSTALLATION, OPERATION, MAINTENANCE, SUPPORT OR USE OF, OR INABILITY TO USE, THE SOFTWARE REGARDLESS OF WHETHER DARWINO KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  LICENSEE ASSUMES FULL RESPONSIBILITY FOR (A) THE CORRECTNESS OF DATA INPUT, (B) MONITORING OUTPUT TO INSURE CORRECTNESS, (C) CORRECTING INVALID DATA, AND (D) ANY ACTION TAKEN BY LICENSEE OR OTHERS BASED UPON THE DATA OR ANY THIRD PARTY SOFTWARE.

THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY STATED HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.

11. INJUNCTIVE RELIEF; COSTS.  In the event of any breach or threatened breach of the provisions of Sections 2, 3, 4, 7, and 8, hereof, Darwino is likely to suffer irreparable harm for which money damages are insufficient.  Accordingly, Licensee agrees that Darwino shall be entitled to a temporary or permanent decree or order restraining and enjoining such breach or potential breach, as well as the remedy of specific performance, in each case without any obligation to post surety.  In the event of the breach of this Agreement by either party, the non-breaching party will be entitled to recover the cost of protecting its legal rights hereunder, including reasonable attorney’s fees.

12. TERM AND TERMINATION.  The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the first to occur of the following:

(a)        Three months following the initial commercial release of a generally available version of the Software;

(b)        Immediately upon Darwin’s written notice to Licensee of a breach of Licensee’s obligations hereunder.

13. EFFECT OF TERMINATION.  In the event of the termination of this Agreement for any reason:

(a)        Darwino shall have the right to immediately terminate Licensee’s use of the Software;

(b)        Licensee shall promptly return to Darwino the original and all copies of Confidential Information of Darwino furnished to Licensee hereunder; and

(c)        The provisions of Sections 3, 4, 5, 7, 8, 10, 11 12 and 13 shall survive termination of this Agreement for any reason.

14. MISCELLANEOUS.

14.1. Assignment.  Darwino shall have the right to transfer or assign this Agreement to any other person or entity without the consent of the Licensee.  Licensee shall not have the right to assign or transfer this Agreement or any rights hereunder without the prior written consent of Darwino, which consent may be withheld for any reason or no reason.  Any change in control of Licensee, whether by merger, stock acquisition or otherwise, shall be deemed to be an attempted assignment of this Agreement and shall be grounds for termination. 

14.2. Governing Law;  This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions or those of any other jurisdiction. 

14.3. Notices.  All notices and other communications hereunder shall be in writing and shall be deemed given: (a) if mailed by registered or certified mail receipt requested, postage prepaid or (b) on the business day after dispatch if sent by a nationally recognized overnight courier, charges pre-paid.: to Darwino, ATTN:  CEO, at the address stated herein, and to Licensee, at Licensee’s address on record with Darwino.

14.4. Licensee Outside the U.S. The Parties confirm and agree that this Agreement and all related documentation shall be in the English language and that the English language version of this Agreement and any related documentation shall be the controlling version.  Licensees who are based outside of the U.S. shall be responsible for complying with all local laws in their jurisdictions which may affect their right to import, export or use the Software.

15. ENTIRE AGREEMENT.  This Agreement constitutes the entire agreement between Darwino and Licensee pertaining to the subject matter hereof and supersedes all proposals or prior and contemporaneous agreements or understandings of the parties regarding such matter, whether written or oral.