121 Victor Heights Parkway, Victor, NY 14564
P:585-924-4450
F: 585-924-4468
www.newscaletech.com

END USER SOFTWARE LICENSE AGREEMENT
PLEASE READ THE 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 USERSOFTWARE 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.

1SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions applicable to the license granted hereinby New Scale Technologies, Inc. (“NST”), owner of New Scale Robotics Division (“NSR”) for
the NSR Devices / Pathway / VCS software / any other embedded and accessory software(“Software”) for various NST or NSR products. NST family of products include; M3 Motion
Modules using Pathway Software; Multi-probe Manipulators using VCS Software and Q-SpanProducts using NSR Devices Software; this Agreement covers any additional software thatmay be developed for these or other products. The software is provided on a controller
installed in one of the above products when purchased or may be downloaded from New
Scale Robotics or New Scale Technologies Websites. The term “Software” includes all (i)NST or third-party computer information of software which is a part of the NST family ofproducts; (ii) related explanatory written materials or files; and (iii) all patches, error
corrections, updates, upgrades, enhancements, modifications, additional software
components provided by NST to be embedded in the product. This Agreement governs thelicense to use the Software by you, the purchaser or user of a NST product (“Licensee”).

2

LICENSE GRANT AND RESTRICTIONS

2.1.1

NST grants to Licensee, and Licensee accepts, a non-exclusive, non-transferable licenseduring the term of the Agreement to use the Software solely in connection with the NST
product in which the Software is embedded and only as authorized in and subject to thisAgreement. Licensee agrees that (1) Licensee may only use the Software in accordance withthe terms of the Agreement; (2) Licensee may only use the Software for its own internalbusiness purpose and within the scope of the Software application with respect to one NST
product; (3) Licensee will not pledge, lease, rent or assign to, or share Licensee’s rights or1|Page

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2.1.2

obligations under this Agreement with, any third party; (4) except as permitted bymandatory law; Licensee shall not, under any circumstances, reverse engineer, decompile,
disassemble or otherwise attempt to discover, reconstruct or identify the source code of theSoftware or any user interface techniques, algorithms, logic, protocol, or specifications
included, incorporated, or implemented herein; (5) the Software shall not be used in any
way which would violate any Export Laws (as defined in Section 7 herein) and; (6) Licensee
will not transfer or make the Software available to any third party, or create derivative
works of the Software, without NST’s prior written consent, and in the event of any
violations of this Section 2.1 NST is not liable for any damage or harm caused by its
Software, the NST products to Licensee or any third party.
This Software is the intellectual property of and is owned by NST and/or its licensors. The
structure, organization and code of the Software are valuable trade secrets and confidential
information of NST and / or its licensors. Unless permitted by law or specifically andexpressly permitted by NST in writing, Licensee shall not modify, adapt or translate theSoftware. NST’s trademarks shall be used only in accordance with accepted trademark
practice, including identification of trademark owners’ names. The trademarks shall only be
used to identify printed output produced by the Software and such use of any trademark
does not give Licensee any rights of ownership in the trademark. Except for the license
granted in Section 2 above, this Agreement does not grant Licensee any intellectual
property rights in or license to she Software and all rights and licenses not expressly granted
here in are reserved by NST. Licensee agrees that all right, title and interest in the Software,including the intellectual property, is and remains the sole property of NST and /or its
licensors.

3CONSIDERATION

3.1.1
3.1.2
3.1.3

The purchase price paid by Licenses to NST for the Product includes the licensee fee for thelicense to use the Software granted under this Agreement.
NST reserves the right to demand an annual license fee in the future.
NST reserves the right to demand an additional license fee for future updates, upgrades,enhancements and / or additional software components provides by NST to be embedded inthe Product.

4TERM AND TERMINATION

4.1.1

This Agreement is effective upon Licensee’s receipt and use of the Software and shallcontinue until terminated pursuant to this Section 4. Licensee may terminate thisAgreement by terminating its use of the Software. NST may terminate this Agreement for
convenience by providing ninety (90) days’ notice to the Licensee.
NST may terminate this Agreement for cause at any time upon the occurrence of any of thefollowing events: (1) breach by Licensees of any term hereof that is not cured within thirty(30) days written notice of such default, if cure is possible, otherwise this Agreement isterminated upon breach with immediate effect; (2) Licensee’s failure to pay any purchase

4.1.2

2|Page4/30/20204.1.3

price or license fees when due and owning under this Agreement, if applicable; or (3)Licensee’s default under any other agreement with NST.
Upon termination, Licensee shall immediately cease to use the Software.

5WARRANTY AND DISCLAIMER
THE SOFTWARE AND DOCUMENTATION ARE PROVIED ON AN “AS IS” BASIS AND NST MAKESNO WARRANTY OF ANY KIND WITH RESPOECT TO THE DOCUMENTATION AND SOFTWARE
AND HEREBY EXPERESSLY EXCLUDES ANY WARRANTIES WITH RESPECT THERETO, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANYIMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR APARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR ANY OTHER WARRANTIESOR GUARANTIES THAT MAY ARISE FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
NEITHER NST OR ITS SUPPLIERS, INCLUDING – WITHOUT LIMITATION- ITS LICENSORS,MAKES ANY REPRESENTATION , WARRANTY, OR OTHER COMMITMENT REGARDING (1) THEUSE OR INABILITY TO USE THE SOFTWARE; OR (2) ANY RESULTS OF SUCH USE IN TERMS OFCORRECTNESS, ACCURACY OR RELIABILITY. LICENSEE UNDERSTANDS AND AGREES THAT ITASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE.

6LIMITATIONS OF LIABILITY AND REMEDIESTO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL NST BE LIABLE FOR ANY LOSSES ORDAMAGES INCURRED BY LICENSEE, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL,EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOSS OR ANTICIPATED PROFITS, SAVINGS,INTERRUPTIONS TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESSINFORMATION OR OTHER DATA, THE COST OF RECOVERING SUCH LOST INFORMATION ORDATA, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSSARISING FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE REGARDLESS OFWHETHER NST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NST’SAGGREGATE LIBILITY IN RESOECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO THEGREATER OF: (1) THE ANNUAL LICENSE FEE PAID BY LICENSEE FOR USE OF THE SOFTWARE;OR (2) ONE HUNDREDD U.S. DOLLARS ($100.00). THE FOREGOING LIMITATIONS APPLYREGARDLESS OF THE CAUSE OR CIRCUMSTANCE GIVING RISE TO SUCH LOSS, DAMAGE OR
LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHERTORTS OR BREACH OF CONTRACT.

7EXPORT LAWS
Licensee agrees to comply with all applicable laws and regulations, including export laws ofthe United States and any other applicable country or jurisdiction. Licensee agrees that theSoftware 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

3|Page4/30/2020

export laws, restrictions or regulations (collectively the “Export Laws”). In addition if theSoftware 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,
Venezuela, Cuba, and North Korea) and that Licensee is not otherwise prohibited under theExport Laws from receiving the Software. The Software shall not under no circumstances beused by Licensee for planning, construction, maintenance, operation or use, directly or
indirectly in nuclear power plants, missile technology, chemical or biological weapons
applications.

8INDEMNIFICATION
Licensee shall defend, indemnify and hold NST and its affiliates, employees and agentsharmless, 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 attorney’s fees) that NST may incur or be obligated to pay as aresult of Licensee’s unauthorized use, modification, resale, transfer, shipment or export ofthe Software.

9GOVERNING LAW AND JURISDICTION
This Agreement shall be covered by and construed in accordance with the laws of New YorkState; United States of America, without giving effect to conflict of law’s provisions thereof.
The parties expressly disclaim the applicability of the United Nations Convention onContracts for the international Sale of Goods. All disputes arising out of or in connection
with the Agreement shall be submitted to the International Court of Arbitration of theInternational Chamber of Commerce and shall be finally settled under the Rules ofArbitration of the international Chamber of Commerce by one arbitrator appointed inaccordance with the said Rules. The place of arbitration shall be Rochester, New York. The
arbitration shall be conducted in the English language. The foregoing notwithstanding, NST
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 aware of the arbitrator in any court of competent jurisdiction.

10CONFIDENTIATLY
Each party (the “Receiving Party”) may receive or be given access to the business, product orservice or customer information of the other Party (the “Disclosing party”), that is marked orotherwise identified as “proprietary” or “confidential” or that is of such a nature that areasonable person would understand such information to be proprietary of confidential(“Confidential Information”). A Party’s confidential information shall not be deemed toinclude information that (a) is or becomes publicly known other than through any act oromission of the Receiving party; (b) was in the other Party’s lawful possession without any

4|Page4/30/2020obligations of confidentiality before the disclosure; (c) is lawfully disclosed to the receiving
party by a third party without restriction on the disclosure; (d) is independently developedby the Receiving party without use of or reference to the Confidential Information of theDisclosing Party, which independent development can be shown by written evidence; or isrequired to be disclosed by applicable law, by any court of competent jurisdiction of by any
regulatory or administrative body, provided the Receiving Party will promptly notify theDisclosing party upon learning of any such legal requirement, and reasonable cooperatewith the Disclosing Party in the exercise of its right to protect the confidentiality of theConfidential information before any tribunal or governmental agency.

11ENTIRETY OF THE AGREEMENT
This agreement shall constitute the complete, final and exclusive agreement between NSTand Licensee with respect to the subject matter hereof, and supersedes all proposals, oral orwritten, and all other communications between the parties relating to this subject matterhereof; provided that all confidentiality and mutual non-disclosure agreements previously
executed by Licensee and NST shall remain in full force and effect. If any of the terms andconditions of this Agreement is held by any competent court or authority to be invalid or
unenforceable in whole or in part, the validity of the reminder 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 the Agreement and are hereby rejected.

12CHANGES TO THE AGREEMENTNST reserves the right, in its sole and absolute discretion, to change the terms of theAgreement, including – without limitation – to demand an annual license fee, cf. Section
3.1.2 or an additional licenses fee cf. Section 3.1.3 by providing ninety (90) days’ notice tothe Licensee.

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