NORTH STAR ENTERPRISE EARLY ACCESS TERMS AND CONDITIONS
Last updated: July 29, 2018
These North Star Enterprise Early Access Terms and Conditions (“Agreement”) set forth the terms and conditions that apply to the purchase of goods and services through participation in the North Star Early Access Enterprise Program (“Program”) operated by Leap Motion, Inc. (“Leap Motion”, “we” or “us”) by placing an order for participation in the Program through the Leap Motion web site, or by execution of a separate written order for participation in the Program (either such click electronic or separate written order being an “Order”). As used in this Agreement, references to “Company”, “you” and “your” means the entity placing the Order for participation in the Program. Leap Motion and Company agree as follows:
1. Agreement. This Agreement is the final, exclusive and entire agreement between Leap Motion and Company for the Program and the goods and services provided thereunder and supersede any and all other prior or contemporaneous negotiations and agreements between them relating to the subject matter of this Agreement. Without limiting the generality of the foregoing, Leap Motion’s Limited Hardware Warranty is specifically excluded and will be of no force or effect with respect to any tangible goods provided by Leap Motion to Company under the Program. No change, modification or revision of this Agreement will be effective unless in writing and signed by Leap Motion’s [CEO or VP Finance] Any different or additional terms proposed or issued by Company, irrespective of timing, including in any purchase order, will be void and of no force or effect (notwithstanding anything to the contrary therein). Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement signed by both Leap Motion and Company covering participation in the Program, and the terms of any such agreement will prevail over any inconsistent terms in this Agreement.
2. Other Agreements Incorporated by Reference. The terms of Leap Motion’s SDK Agreement (“SDK Agreement”) is hereby incorporated by reference, except that in the event of any conflict between the SDK Agreement and this Agreement, the terms of this Agreement will govern. Any application developed by Company under or through use of the products and/or services provided by Leap Motion under the Program will be deemed Specialized Applications under the SDK Agreement. Leap Motion does not grant any distribution license for any such application.
3. Products and Services. The products, services and benefits to be provided by Leap Motion under the Program are set out in the Order. Any tangible goods, software, intangible goods or other technology provided under the Program are referred to as the “Leap Motion Technology”.
4. Marketing. Neither party will, without the prior written permission of the other party, (i) make any public statement, press release, or other announcement disclosing or relating to the terms or existence of this Agreement, or (ii) use or display such other party’s trademarks, service marks, trade names, or logos; provided, that Leap Motion may use the Company’s trademark, service mark, trade name and logo in its marketing materials for the Early Access Program and on its website, unless the Company advises otherwise via email to firstname.lastname@example.org within seven (7) days of execution of this Agreement. If the parties enter into a mutually agreeable joint marketing agreement after the date of this Agreement, the terms of such agreement shall control.
5. Support Services. Any direct support from Leap Motion engineering personnel is to be scheduled on mutually agreeable times / dates, with Leap Motion using reasonable efforts to schedule support sessions to occur within one week of the request, or such later time period as you may request. Support hours must be used within six (6) months after the date of your Order. Leap Motion does not warrant the results of any support session.
6. Possible Non-Fulfillment of Future Products, Software or Other Materials. Company acknowledges and agrees that for any products, software or other materials which have been indicated by Leap Motion in the Order or otherwise as a future item, any delivery period provided is an estimate only, and delays in development or shipment, or a failure to complete or ship the product, software or other materials may occur for many reasons. In particular, such items may require substantial further work by Leap Motion to complete, and the successful completion of such items cannot be assured, whether because of a failure of engineering, lack of financial resources, or other reasons.
7. Prototypes Only; No Obligation. Company acknowledges and agrees that the products and services provided by Leap Motion as part of the Program are prototypes, alpha or beta versions, and that they may have significant performance and other defects. Company acknowledges and agrees that (i) Leap Motion is not obligated to make any of the products and services under the Program available as a standard Leap Motion product, (ii) Leap Motion’s future plans concerning its products and services are subject to change at any time without notice; and (iii) Leap Motion will have no liability as a result of any such change. The products and services provided by Leap Motion as part of the Program are for non-public prototyping use only, and any other use is prohibited under this Agreement and shall require a separate industrial license.
8. Pricing and Availability. We reserve the right to change prices for participation in the Program at any time, and to correct pricing errors that may inadvertently occur.
10. Order Acceptance. We reserve the right to accept or decline your Order for any reason at any time, including after an Order has been submitted, whether or not the Order has been confirmed. If we cancel an Order after you have already been billed, we will refund the billed amount. We may attempt to contact you if all or a portion of your Order is cancelled, or if additional information is needed to complete and accept your Order. If we accept your Order, it is incorporated in this Agreement by reference.
11. Participation Fee, Payment. The fee for participation in the Program is set out in the Order. Payment for participation in the Program is due on placement of the Order. All credit, debit and other payment accountholders are subject to validation checks and authorization by the card issuer or payment account administrator. If the issuer of your payment card or administrator refuses to authorize payment to us, we will not be liable for any delay or non-delivery. By proving account and bank information, you authorize Leap Motion to originate debit and/or credit entries via the Automated Clearing House to the account provided at the Depository Financial Institution provided, to accept and to debit/credit the amount of such entries to the account. Debit entries will be initiated only as authorized.
12. Shipping & Delivery. The stated delivery period within which you will receive any tangible goods under your Order is approximate. For any products, software or other materials which has been indicated by Leap Motion in the Order or otherwise as a future item, any delivery period provided is an estimate only, and delays in development or shipment may occur for many reasons. In particular, many of such items may require substantial further work by Leap Motion to complete, and the completion of such items cannot be assured. Tangible goods will be sent to the address given by you in your Order (subject to any shipping restrictions, which we may impose in our sole discretion). All shipments are made by third party carriers. All deliveries are FCA (Incoterms 2010). Risk of loss for tangible goods passes to you upon delivery of the goods to the carrier, and Leap Motion retains title to all Products shipped until we have received final payment in full.
13. Taxes, Customs Duties and Fees outside of the United States. If your shipping address is outside of the United States, your items may be subject to taxes, customs duties and fees levied by the destination country (“Import Fees”). If so, you are the importer of record in the destination country and are responsible for all Import Fees, to ensure that any tangible goods can be lawfully imported, and to comply with all laws and regulations of the destination country.
14. Resale. Any tangible goods provided by Leap Motion under the Program may not be resold.
15. Intellectual Property. As between Leap Motion and you, Leap Motion is the sole owner of all rights, title and interest, including all intellectual property rights, in and to the Leap Motion Technology. All software provided as part of the Program is licensed under the SDK Agreement, as alpha or beta software which is non-public and must be kept confidential by you. Leap Motion expressly does NOT grant you a patent license in this Agreement to any modifications to, or derivative works of, any goods, intangibles, software, documentation or other materials provided by Leap Motion to you under the Program, whether made by you, your contractor, or any third party even if the modification and derivative works are permitted under the SDK Agreement.
16. Confidentiality. “Confidential Information” means: (i) any information (including any and all combinations of individual items of information) disclosed (directly or indirectly) by one party (“Discloser”) to the other party (“Recipient”) pursuant to this Agreement that is in written, graphic, machine readable or other tangible form (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, discoveries, ideas, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (ii) oral information disclosed (directly or indirectly) by Discloser to Recipient pursuant to this Agreement; provided that such information is designated as confidential at the time of its initial disclosure and reduced to a written summary by Discloser that is marked in a manner to indicate its confidential nature and delivered to Recipient within thirty (30) days after its initial disclosure. Confidential Information may include information of a third party that is in the possession of Discloser and is disclosed to Recipient under this Agreement. Confidential Information shall not, however, include any information that: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by Discloser to Recipient through no wrongful action or inaction of Recipient; (iii) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by Recipient from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception. Recipient shall not use any Confidential Information of Discloser for any purpose other than as set forth in this Agreement. Recipient shall not disclose any Confidential Information of Discloser to third parties or to Recipient’s employees, except that, subject to the following sentence, Recipient may disclose Discloser’s Confidential Information to those employees of Recipient who are required to have such information in order to perform the services set forth in this Agreement. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing, Recipient shall take at least those measures that it employs to protect its own confidential information of a similar nature and shall ensure that its employees who have access to Confidential Information of Discloser have signed a non-use and non-disclosure agreement in content at least as protective of Discloser and its Confidential Information as the provisions of this Agreement, prior to any disclosure of Discloser’s Confidential Information to such employees. Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Discloser’s Confidential Information and that are provided to Recipient under this Agreement.
17. Feedback. You may (but are not required to) provide feedback, comments and suggestions (collectively, “Feedback”) to Leap Motion. You hereby grant to Leap Motion a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose.
18. Updates to Leap Motion Technology. The terms of this Agreement will apply to any updates of the Leap Motion Technology that Leap Motion makes available to you.
19. Other Restrictions. You may not use any Leap Motion Technology for any purpose other than those set out in this Agreement. You may not transfer, sell or lease the Leap Motion Technology to anyone else. No rights are granted by Leap Motion under any intellectual property independent of the Leap Motion Technology. You may not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Leap Motion Technology. ALL RIGHTS NOT EXPRESSLY GRANTED UNDER THIS AGREEMENT ARE RESERVED TO LEAP MOTION.
21. Export Controls. You agree to comply with all applicable laws, regulations and orders applicable to the export, re-export, transfer or resale of goods and intangible products provided under the Program. You also acknowledge that we will not take, and will not be required to take, any action contrary to such applicable laws. Among other restrictions, note in particular that certain products may not be exported to certain countries, or may be exported only with individual licenses.
22. Warranty Disclaimer. THE LEAP MOTION TECHNOLOGY AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LEAP MOTION MAKES NO, AND HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LEAP MOTION TECHNOLOGY AND SERVICES, INCLUDING ITS OR THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, QUALITY OR PROFESSIONALISM, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND LEAP MOTION SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. LEAP MOTION DOES NOT WARRANT THAT THE LEAP MOTION TECHNOLOGY WILL BE ERROR-FREE OR THAT IT WILL WORK WITHOUT INTERRUPTIONS.
23. LIMITATION OF LIABILITY. IN NO EVENT WILL LEAP MOTION’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
24. Assignment. You may not assign this Agreement or any rights or obligations under it, directly or indirectly, by operation of law or otherwise, without the prior written consent of Leap Motion. Leap Motion will have the right to assign this Agreement without your consent in connection with a sale or transfer of all or substantially all of its business or assets to which this Agreement relates, whether by sale, merger, operation of law or otherwise. In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.
25. Remedy. If you breach, or threaten to breach this Agreement, or Leap Motion breaches, or threatens to breach, the confidentiality provisions of this Agreement, each party agrees that the non-breaching party would suffer substantial injury and may have no adequate remedy at law and would therefore be entitled to, in addition to all other remedies which may be available to it under law, immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
26. Waiver; Severability. If one party breaches this Agreement, the failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any of its rights. The rights and remedies of the parties as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. In addition, if any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
27. Governing Law and Jurisdiction. This Agreement will be exclusively governed by and construed under the laws of the State of California without reference to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and the parties agree and submit to the exclusive jurisdiction and venue of these courts.
28. Relationship of the Parties. This Agreement does not create any agency, partnership or joint venture relationship between Leap Motion and you. Nothing in this Agreement will in any way be construed to constitute you as an agent, employee or representative of Leap Motion, but Company will carry out its obligations under this Agreement as an independent contractor.
29. Notice. Any required notice will be given in writing by customary means with receipt confirmed at the address of each party set forth in the Order. or to such other address as either party may substitute by written notice to the other.
30. Consent. When you visit the Leap Motion website, place an Order, or send e-mails to us, you are communicating with us electronically. For contractual purposes, you consent to receive communications electronically from us and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.