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VERSION DATED AS OF [*April 28, 2021]

IMPORTANT: Please read this End User License Agreement (the “EULA”) carefully before Downloading the Library, as it sets out the terms and conditions upon which Alcyon grants a License on the Licensed Material.

This EULA regulates the entire relationship between the Customer and Alcyon for the use of the Licensed Material. By Accepting the granting of the License, all the terms and conditions set forth under this EULA shall fully apply and be binding to the Customer. Therefore, if you do not agree to this EULA, you must not Accept.

1. DEFINITIONS

In addition to those terms defined throughout the EULA, the following terms shall have the following meaning:

• “Accept”, “Acceptance” or “Accepting” means the express act required to the user on the Website for the contracting of the License.
• “Agreement” means both the EULA and the Fabrication Agreement.
• “Alcyon” means the Spanish limited company Alcyon Photonics, S.L. For more information about Alcyon, please visit the legal notice or the privacy policy available on the Website.
• “Alcyon´s Designs” means the schematic layout that is part of the Library and that, consequently, the Customer is authorised to use by virtue of the License. For clarification purposes, the Alcyon´s Designs are part of the Alcyon´s and/or Authorizing Parties’ Industrial and Intellectual Property Rights.
• “Apply(ies)” or “Application” means the date on which the EULA comes into force, which is the Effective Date.
• “Authorizing Parties” means third parties that have granted to Alcyon an authorization to use their Industrial and Intellectual Property Rights.
• “Black Boxes” means the boxes part of the Library that contains the Alcyon´s Designs and that would be replaced by the pertinent Pic Design under a Fabrication Agreement as part of the fabrication process.
• “Claim(s)” shall have the meaning stated under clause 10 of the EULA.
• “Chip(s)” means the Pic Design once it has been fabricated under a Fabrication Agreement.
• “Commercial License” means a non-exclusive, non-transferable, revocable, royalty-bearing license to install the Library and to use such installed Library and the Documentation, during the License Term, on a Single Computer, solely for the Evaluation Purposes and within the terms and conditions set forth under this Agreement.
• “Customer” means the individual or legal entity that is holder of the License as described on the Library Request Form.
• “Delivery(ed)” means the moment that Alcyon notifies the Customer that the Library is placed at her/his/its disposal via e-mail for its Downloading for installation on a Single Computer. For clarification purposes, the Delivery will occur upon Acceptance by the Customer.
• “Documentation” means user manual and other documents and material that, if needed, may be provided to the Customer by Alcyon for the correct use of the Library and for knowing the pertinent technical data.
• “Download(ing)” means the electronic transmission of the files to the Customer via e-mail for the installation of the Library on the Customer´s Single Computer.
• “Dye” has the same meaning as “Chips”, so both Chips and Dye can be used indistinctly.
• “Effective Date” means the date on which the Customer Accepts.
• “Evaluation Purposes” means the purpose for which the Library must be used by the Customer, which is: only for testing whether the Library suits Customer’s needs. Any other use of the Library is prohibited.
• “Fabrication Agreement” means the agreement attached as Annex 1 to be fully applicable and binding between the Parties as provided for in clause 5 of the EULA.
• “FabCode” means the fabrication code provided by Alcyon to the Customer as authorization to fabricate the Pic Design with the corresponding Foundry.
• “Foundry” means the third party authorized by Alcyon for, inter allia, the replacement of the Black Boxes part of the Library by the pertinent Pic Design and, consequently, for obtaining the Chips.
• “Industrial and Intellectual Property Rights” are all rights recognised by intellectual property legislation (copyright, related rights and any other sui generis rights), and all rights recognised by industrial property legislation (patents, trademarks, utility models, industrial or artistic sketches and models, topographies of semi-conductor products, plant varieties and any other similar rights) or by any laws regarding unfair competition and protection of trade secrets.
• “Library” means the two following sub computer programs: a simulation library and a drawing library, that enables the Customer the layout and simulation of photonic circuits. The components for layout, inter allia, the Alcyon´s Designs, are provided as Black Boxes in order to protect the Alcyon’s and Authorizing Parties´ Industrial and Intellectual Property Rights. Any reference in this Agreement to the Library shall include the Alcyon´s Designs and any software embedded in the Library, unless expressly stated otherwise in this Agreement.
• “Library Request Form” means the form available on the Website that must be completed for requesting a License on the Library.
• “License” means the license(s) granted by Alcyon to the Customer under this Agreement.
• “Licensed Material” means the Library (including, inter allia, the Alcyon´s Designs), the Documentation and the software embedded in the Library.
• “License Term” means the period during which the Licensee is granted the right to use the Library as set forth in clause 3.1 of this EULA.
• “Pic Design” means the draw made by the Customer by using the Library. The design and fabrication of a Pic Design shall be regulated under a Fabrication Agreement prior authorization to do so as per clause 4 of this EULA.
• “Single Authorization” means that a fabrication of a Pic Design may only be carried out once during the License Term. If the Customer wishes to obtain further fabrication of a Pic Design or of new designs or to fabricate out of the Sixty-Days Period, a new EULA must be Accepted and, consequently, further authorization from Alcyon for fabricating must be requested and required.
• “Single Computer” means one seat with one central computer unit and one keyboard in a fixed location.
• “Sixty-Days Period” means the period sets by the Foundry for fabricating, which shall not exceed sixty days. The starting and finishing date of the Sixty-Days Period will be set by the Foundry.
• “Software” means any computer program used by Alcyon related to the Library and/or any computer program embedded in the Library.
• “Website” means the official website of Alcyon where a license on the Library can be requested by completing the corresponding Library Request Form and Accepting.

2. LICENSE
   • Subject to the terms and conditions of this Agreement, Alcyon grants the Customer, who accepts, a non-exclusive, non-transferable, revocable license to install the Library and to use such installed Library and the rest of the Licensed Material, during the License Term, on a Single Computer and solely for the Evaluation Purposes (hereinafter, the “Evaluation License”). Any other use not granted herein is not allowed and shall constitute a breach of the EULA by the Customer. For clarification purposes, the Library will only be Delivered to the Customer in a machine-readable form (object code). Therefore, no access to source code will be granted to the Customer (access to any source code of the Library or the Software is strictly forbidden in accordance with clause 5 of this EULA).
   • As already stated, the Evaluation License shall be a Single Computer license. This means that a copy of the Library may be installed and used only on a Single Computer owned, leased or otherwise controlled by the Customer. Unless expressly stipulated otherwise in writing, the fixed location is presumed to be the address of the Customer stated on the Library Request Form. Neither concurrent use on two or more computers nor use in a local area network (LAN) or another network is permitted.
   • If the Customer fails to comply with the terms and conditions of the EULA and, for example, without limitation, uses the Library for any other purpose other than Evaluation Purposes, it shall constitute a breach of the EULA by the Customer and, then, Alcyon will be entitled to early terminate the EULA and to claim damages.
3. LICENSE TERM

• The EULA commences on the Effective Date and, unless terminated earlier in accordance with the provisions of clause 9, shall continue in full force and effect for a period of sixty (60) calendar days from the Effective Date (the “License Term”). Nonetheless, this EULA shall continue to be fully applicable and binding between the Parties after expiration of the License Terms, if:
• the Library continues to be available to the Customer; or
• the Fabrication Agreement has come into force, in which case the EULA shall continue to be fully applicable and binding between the Parties during the term of the Fabrication Agreement. The above, without prejudice of the Single Authorization.
• Upon expiration of the EULA for whatever reason, the provisions which are meant to be in force after cancellation, expiration or termination shall survive. In particular, it shall survive the following clauses of the EULA: 5 (rights of Alcyon and restriction), 8 (privacy), 9.3 (effects of termination), 11 (warranties and indemnification), 12 (limitation of liability), 13 (miscellaneous) and 14 (governing law and jurisdiction).

4. FABRICATION PROCESS

• If the Customer is interested during the License Term in the design and fabrication of the Pic Design, the Customer must communicate it in writing to Alcyon (the “Request of Authorization”).
• Together with the Request of Authorization, the Customer is obliged to provide Alcyon in writing with detailed information (which in no case shall include personal data) that must comprise at least the following (the “Information Required”):
• Number of Chips that the Customer is interested in fabricating based on the Pic Design;
• Aggregated number of uses to be given to the Chips;
• Identification and aggregated number of elements of the Library that are used in each of the Chips; and
• Information regarding the purpose of fabricating (commercial or not) the Pic Design (the “Fabrication Purposes”). For avoidance of doubts, the Fabrication Purposes must be authorized by Alcyon. Therefore, no commercial purpose is granted without Alcyon´s authorization.
• After reception by Alcyon of the Request of Authorization and the Information Required, Alcyon will notify the Customer whether or not Alcyon authorizes the fabrication of the Pic Design. For clarification purposes, without prejudice to additional requirements, the granting of the authorization for fabricating the Pic Design will be subject to the provision of the Information Required to Alcyon.
• If an authorization is granted by Alcyon: (i) Alcyon will send the Customer a FabCode, and (ii) the Fabrication Agreement shall apply and be binding between the Parties, which is known and agreed by the Customer.
• For clarification purposes, it is strictly forbidden to fabricate a Pic Design without prior written authorization from Alcyon.

5. RIGHTS OF ALCYON AND RESTRICTIONS

• Alcyon, as the sole and exclusive owner and/or transferee of the Library, reserves at all times all the title and rights to modify or update the Library.
• Alcyon will have the right to verify the computer(s) or hosting server(s) on which the Library has been installed in order to ensure compliance with this EULA. For clarification purposes, the verification process (if executed) will not entail access to any personal data or information.
• The Customer acknowledges and agrees that Alcyon has and shall retain the entire right, title, and interest in and to all Alcyon and the Authorizing Parties Industrial and Intellectual Property Rights arising from or relating to the Licensed Material (and any and all copies or portion thereof), whether or not merged into other materials, and to the successive versions even including any eventual improvement or upgrade. The EULA does not convey to the Customer any right title and interest in or to the Licensed Material, but only a limited revocable right of use in accordance with the terms of the EULA.
• The Customer shall not (and shall not allow any third party to):
• adapt, decompile, disassemble, or otherwise reverse engineer, reverse compile or otherwise translate the Library and the Software or any part thereof, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or unexposed programming interfaces of the Library or the Software by any means whatsoever (except and only to the extent and on the conditions that applicable law allows the Customer to decompile). Additionally, the Customer shall not utilize any equipment, software or means to circumvent or remove, or try to do so, any form of technical protection sued by Alcyon in connection with the Library;
• assign, sublicense, transfer, pledge, lease, rent or share the rights granted under the EULA, or distribute or sell Licensed Material or any part of copy thereof to any third party, or otherwise provide or disseminate all or any part of the Library or the Software to any other person or entity;
• remove any product identification, proprietary, copyright or other notices contained in the Library or the Software;
• modify any part of the Library or the Software, create a derivative work of any part of the Library or the Software, or incorporate the Library or the Software into or with other software;
• publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Library or the Software;
• have any license rights other than those expressly granted in this EULA; or
• carry out any other action not expressly authorized to the Customer under this EULA.

6. UPGRADES

• If Alcyon makes available to the Customer any additional materials associated with the Licensed Material including without limitation any corrections, patches, updates, upgrades to, or new versions of the Licensed Material, such additional materials may include or be subject to other terms in addition to or different from the terms set forth in the EULA, and the Customers agrees to comply with such terms, or if there are no other terms for such additional materials, they will be subject to the same terms as the Licensed Material (those herein agreed).
• In any case, for the sake of clarity, as the purpose of the License is Evaluation Purposes during the License Term, there is no obligation for Alcyon to provide the Customer with corrections, patches, updates, upgrades to, or new versions of the Licensed Material. Nonetheless, Alcyon, at its sole discretion, will provide the Customer with a new version of the Software if it is needed for the fabrication of the Pic Design if the fabrication of Pic Design has been authorized by Alcyon.

7. ECONOMIC TERMS

• As stated under clause 2.1 of the EULA, the Evaluation License is granted on a free basis.
• In case that the Customer contracts a Commercial License on the Website, the Library will be licensed on a pay-per use basis, which is known and accepted by the Customer. The applicable economic terms shall be regulated on a separate document.
• The licensed fees paid by the Customer for a Commercial License will be paid by the Customer in consideration of the license granted.
• For the fabrication of the Pic Design, the Customer shall pay the fees set forth under clause 6 of the Fabrication Agreement.

8. PRIVACY

• The Customer is informed that any personal data provided by him or that may be provided by him in the future for the performance of the EULA (the “Data”) will be processed by Alcyon as set forth under this clause:
• Alcyon informs the Customer that the Data will be processed by Alcyon for the purpose of executing, managing and monitoring the Customer´s contractual relationship within Alcyon and to respond to Customer´s enquiries.
• There is no obligation to provide the Data, however, failure to provide them may lead to the impossibility for Alcyon to execute its obligation under the EULA.
• The legitimate grounds for the processing of the Customer´s Data is the execution of the EULA.
• Data shall be stored for no longer than is necessary to maintain the purpose of the processing or for as long as there are legal prescriptions dictating their custody, and when such purpose is no longer, necessary the Data shall be erased with appropriate security measures to ensure the anonymization of the Data or their complete destruction.
• In the event that the Customer provides data of third parties, the Customer states that she/he/it has the consent thereof and that the Customer has complied with the obligation related to the duty to provide information regarding how Alcyon will process their personal data.
• No communication of personal data to third parties is foreseen except, if necessary, for the development and execution of the purposes of the processing, to our suppliers of services related to communications, with which Alcyon has signed the confidentiality and data processor contracts required by current privacy regulations.
• With the aim of safeguarding and guaranteeing the security of Data, Alcyon has taken reasonable steps to ensure that the Data are properly secured using appropriate technical and organizational measures, so that they are protected against alteration, accidental or wrongful destruction or loss and unauthorized or unlawful access or disclosure.
• The data subject has the right to (where applicable): (i) obtain confirmation of whether personal data concerning her/him is being processed by Alcyon, (ii) access her/his personal data; (iii) correct inaccurate or incomplete data, (iv) request the deletion of her/his data when, among other reasons, the data are not necessary for the purposes for which they were collected; (v) request that Alcyon restrict the processing of the data, when meeting the requirements set forth by data protection legislation; (vi) request the portability of his data; (vi) file a complaint with the Spanish Data Protection Agency when she/he deems that Alcyon has infringed his rights under the applicable data protection legislation.
• For any questions, or for exercising any of the aforementioned rights, please contact Alcyon at:
• info@alcyonphotonics.com
• PRIVACY MANAGEMENT TEAM.
• C/Genova 11, 1º Izda, Madrid 28004, Spain.

9. EARLY TERMINATION

• Alcyon will automatically terminate the EULA and without notice, upon breach by the Customer of any provision of the EULA. In case of termination of the EULA, the License granted will be immediately revoked, and Alcyon will be entitled to claim any compensation that may arise resulting from such breach of the EULA by the Customer.
• The Customer may terminate the EULA at any time by returning or destroying (at the sole discretion of Alcyon) any Licensed Material in its possession. No refund of any amount paid will be made, except as granted and where applicable in accordance with clause 11 “Warranty and indemnification” of the EULA.
• Upon termination or expiration of the EULA, the Customer shall (i) stop using the Licensed Material and the Software; and (ii) return or destroy (at the sole discretion of Alcyon) all Licensed Material. Upon termination or expiration of the EULA, the Library will automatically become non-functional and fabrication of a Pic Design with a Foundry will not be allowed.

10. MAINTENANCE

• Unless a maintenance agreement or customer service agreement is agreed in writing, Alcyon shall have no obligation to provide any maintenance or support services to the Customer. All efforts undertaken by the Customer or a third party in providing assistance shall be at Customer’s own expense.

11. WARRANTY AND INDEMNIFICATION
    • The Customer warrants to Alcyon that it will install and use the Licensed Material and the Software for the purposes and in strict compliance with the terms set forth under the EULA. Consequently, the Customer warranties to Alcyon that it will not use the Licensed Material for a different purpose from the Evaluation Purpose.

• For Commercial Licenses (where applicable), Alcyon warrants, solely for the Customer’s benefit, that the Licensed Material is free from defects in material and workmanship for a period of sixty (60) calendar days from the Effective Date (the “Warranty Period”). If during the Warranty Period, it appears that any part of the Software does not function in accordance with its specifications, the Customer may return the Licensed Material to Alcyon for replacement or refund of the paid license fee, at the Customer’s choice. The Customer agrees that the foregoing constitutes its sole and exclusive remedy for breach by Alcyon of warranties made under the EULA.
• For Evaluation Licenses, to the maximum extent permitted by applicable law, the Customer acknowledges that the Licensed Material and any updates or upgrades of this are provided “AS IS” and with no warranties of any kind, whether express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose, or non-infringement and warranties created by a course of dealing or performance or a trade usage.
• In the event that, for the design of the Pic Design, the Customer uses original creative works, inventions or any other elements protected by the Customer´s or third parties´ Industrial and Intellectual Property Rights (the “Elements”), the Customer warrants that he/she/it owns or otherwise possesses, or is licensed to use, legally enforceable and valid rights to use (free and clear of all encumbrances) such Elements as part of the Pic Design and, if the fabrication is authorized by Alcyon, of the Chips, without any restrictions.
• To the extent permitted by the applicable law, the Customer will indemnify Alcyon and its affiliates and subsidiaries and keep them fully and effectually indemnified from and against any and all claims, actions, losses, liabilities, proceedings, damages (including both consequential damage and loss of earnings), injury, charge, responsibility, liability, handicap, fine, surcharge, interest, costs and expenses (including costs and fees for attorneys, barristers, notaries, auditors, accountants, expert witnesses and other professionals) (collectively referred to as, ”Claim(s)”) suffered or incurred by Alcyon or its affiliates and subsidiaries as a result of:
• the exercise by the Customer of the rights granted herein;
• the non-compliance, inaccuracy (including that caused by omission) or falsification of any of the statements referred to in the EULA;
• the Customer’s use of the Licensed Material in combination with any hardware or software not provided by Alcyon or approved in the Documentation;
• the modification or attempted modification of the Licensed Material;
• the Customer’s use of other than the latest version of the Licensed Material;
• the non-compliance of the restrictions set forth under clause 5.4;
• the use of any portion of the Licensed Material not in accordance with the terms of this Agreement or the Documentation;
• the use of the Elements as part of the Pic Design and (if applicable) of the Chips; and or
• in general, the breach of any other obligations, commitments, provisions or terms established in the EULA.
• Any Claim received by the Customer or known by the Customer must be communicated to Alcyon. At Alcyon´s sole discretion, Alcyon will have the exclusive right to control and direct the investigation, defence, and/or settlement of such Claim. Nonetheless, the Customer shall provide Alcyon with all reasonable necessary cooperation and assistance.
• In the event that the Claim is brought directly against Alcyon, the Customer shall assume any payment or indemnification that may exist, including, among others, the payment of attorney’s and procurator’s fees, as well as the judicial fees, expenses and costs that may be applicable (including costs and fees for attorneys, barristers, notaries, auditors, accountants, expert witnesses and other professionals).

12. LIMITATION OF LIABILITY

• To the maximum extent permitted by applicable law and provided that liability shall not be excluded or limited in respect of malicious intent or gross negligence, Alcyon hereby excludes all liability in respect of:
• Loss or damage or loss of profits or other losses derived or in relation with the installation, use or other disposition whatsoever by the Customer of the Licensed Material or the Software, whether direct, indirect or consequential.
• Any Claim that may be caused by the Licensed Material or the Software for its use or by the not function of them.
• Claims arising out of any of the following: (i) the content (including without limitation its nature or any intellectual or industrial property rights therein) and/or any other data, images, videos or sounds whatsoever that the Customer may access or transmit using the Plug-ins; (ii) liability to any employer, principal, client, lessor or provider of computer equipment or facilities, arising out of the installation of or use of the Licensed Material; (iii) any charges which the Customer may incur to any telecommunications service or network.
  • Furthermore, Alcyon shall not be liable for any loss, damage, liability or expense suffered by the Customer by reason of (i) inability to use the Library, (ii) loss of data or (iii) business interruptions, (iv) and/or from reasons not attributable to Alcyon even if informed of the likelihood of such damages and even if the limited remedies herein fail their purpose, and damages suffered due to the failure to respect Alcyon’s suggestions or recommendations concerning the Software. The Customer shall be solely liable for any loss and damage suffered by third parties as a result of its actions, and Alcyon shall be released from all liability towards such third parties.
• Alcyon expressly excludes all liability in connection with the Elements, any third-party applications or third-party components that may be included by the Customer.
• In any case, except in cases of gross negligence or willful intent, in no circumstances (other than in the case of fraud, illegal or unlawful acts) shall the total liability of Alcyon arising out under the Agreement exceed the amount of FIVE THOUSAND EUROS (€ 5,000.00).
• Neither party shall be liable for non-performance of or any total or partial non-compliance with their contractual obligations if such non-performance or non-compliance is the result of an event of a Force Majeure Event. “Force Majeure Event” means as set forth in Section 1105 of Spanish Civil Code.

 

13. MISCELLANEOUS

• Entire agreement. This EULA constitutes the whole and only agreement between the Customer and Alcyon with respect to its subject matter and supersedes and extinguishes any prior written or verbal agreements relating to its subject matter.

• If any provision of this EULA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included, but without invalidating any of the remaining provisions of this EULA.

• No Waiver. The failure of any party to enforce any rights granted hereunder of to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

• No Assignment. The Customer may not transfer, assign, delegate or otherwise bequeath this EULA or any of its rights or obligations, without the prior written consent of Alcyon. Any assignment that is attempted in breach of the foregoing will be considered void. Alcyon may transfer, assign, charge, subcontract or otherwise bequeath this Agreement or any of the rights or obligations derived from it, at any time during the term of the EULA.

• Customer shall at all times comply with all applicable U.S., E.U. and national export control and trade sanctions laws, rules and regulations (“Export Control Laws”) where the Customer operates or is located. The Customer warrants and represents to Alcyon that it (i) shall not use, share, make available, sell, modify, reverse engineer or distribute any Licensed Material in a manner that infringes any Export Control Laws and (ii) shall monitor changes and verify continued compliance with amended or updated Export Control Laws.

• Headings of the clauses and subclauses of the EULA are for reference purposes only and shall not limit or affect the meaning or construction of the terms and conditions hereof.

• The execution of the EULA entails the full acceptance by the Customer of the Fabrication Agreement, that becomes an integral and inseparable part of the EULA.

14. GOVERNING LAW AND JURISDICTION

This EULA and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the common law of Spain (derecho común español). Any dispute shall be submitted to the exclusive jurisdiction of the courts of the City of Madrid.