Software as a Service Licensing Agreement “SpaceDev”

Licensor and Licensee shall execute a License Form referencing and incorporating by reference this Software Licensing Agreement ‘SpaceDev’ (“Agreement”).

  1. DEFINITIONS

    1. Software – means the on-premises computer system identified as “SpaceDev”, representing a desktop graphical user interface application designed to simplify software development, configuration, and testing of software-defined satellites, which is developed and owned by the Licensor, including its modifications, additions, updates, defect corrections and further Enhancements, together with the related Documentation. The Software shall be physically installed and run on Designated Units and used locally. The Software enables the Authorized Users to connect with a satellite/s or satellite module/s.
    2. Designated Unit – means computer/ PC or a storage device (such a network server) on which the Software shall be installed. The Software may be installed only once on a single Designated Unit except as otherwise agreed.
    3. Documentation – means all documents and materials, technical and functional documentations that are supplied by the Licensor to the Licensee to support the use and operation of the Software, and all modifications to such documents or materials that are made by the Licensor from time to time at its own discretion.
    4. Additional Services – means Software fixes, updates, upgrades, modifications, Enhancements, technical support, training, provided by and at the discretion of the Licensor.
    5. Data – any type of data, accessible, generated, downloaded and/or obtained on Licensee’s command while using the Software, including, but not limited to: telecommands and telemetry definitions (mission databases), log files, entries, telecommand and telemetry history etc. Data types might differ depending on the Software functionalities development which is entirely at the discretion of the Licensor.
    6. Configuration Parameters – information and/or instructions provided by the Licensee which allows Licensee to use specific functionalities of the Software and generate Data.
    7. Licensee – the entity identified on the License Form which purchases the Software License and may assign the Software License to a Group/s of Authorized Users, as specified in the License Form. Licensee must obtain separate Software License for each Group of Authorized Users who accesses the Software in any manner. An Authorized User license cannot be reassigned.
    8. Group of Authorized Users – up to 5 (five) Authorized Users except otherwise agreed.
    9. Authorized User – single, specific individual user who is an employee of the Licensee and has been authorized by Licensee to use the Software as part of the Group of Authorized Users. The Authorized User is identifiable as a unique user by its e-mail address. Each reference to the Authorized User in this Agreement is a reference to the respective Group of Authorized Users.
    10. Licensor – means EnduroSat Trading EOOD, UIC 205605489, a corporation duly organized and registered under the Laws of Bulgaria, having its office in the city of Sofia, Flora 1A Street, Business center Obsidian, and its licensors, designated as the rightsholder of the Software (owner of all rights, whether exclusive or otherwise to the Software).
    11. Software License – means license granted to the purchased Software valid for one Group of Authorized Users, during the License Term under the terms and conditions of this Agreement and subject to a License fee;
    12. License Form – means any document, including, but not limited to offer, quotation, SOW etc., referencing this Agreement which (i) is signed by the Licensor and Licensee, and (ii) incorporates the terms and conditions set forth herein. Each License Form will be treated as a separate contract. The License Form specifies the applicable terms, such as License Term, Authorized Users, License fee and payment schedules and other conditions if any.
    13. License Term – means the period of time for which a Software License is valid, as set forth in the applicable License Form.
    14. Effective Date – means the date on which the Licensee installs the Software.
    15. License Fee – means the charges and all applicable expenses due for the Software License and other Additional Services, subject to a separate fee, provided by the Licensor as set in the relevant License Form.
    16. Territory – the Territory in which the license granted to the Licensee pursuant to this Agreement is effective is as follows: worldwide, except on any territory of the following countries/territories: Cuba, Iran, North Korea, Sudan, Syria, Russia, Crimea – Region of Ukraine and/or any country under international embargo;
    17. Permitted Use – use of the Software and the Data allowed solely for the Licensee`s internal and proper business purposes, namely for testing/development/training/lab purposes, but in any case, limited to civil and educational end-use, and in compliance with all applicable laws, regulations, and industry standards.
    18. Forbidden Use – explicitly forbidden is the use of the Software and the Data (a) for any illegal purposes and in any way that breaches any applicable local, national, or international law or regulation, or causes Licensor to breach any applicable law or regulation, (b) for any purposes related to defense and/or military technologies, incl. such regulated by International Traffic in Arms Regulations (ITAR), (c) in any nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity; (d) for any purpose connected with chemical or biological or nuclear weapons, or missiles capable of delivering such weapons; (e) by nationals of the following countries: Cuba, Iran, North Korea, Sudan, Syria, Russia or any country under international embargo, (f) for the transmission of data of any kind that is unlawful, defamatory, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of the Licensor or any other third party, (g) in connection with a Weapons of mass destruction (WMD) program or in a WMD delivery system, (h) as far as the Software and/or Data are or may be intended for incorporation into military equipment, or for the development, production, or maintenance of such equipment, or for the use in a plant for production of such equipment in an embargoed destination; (i) as far as the Software and/or Data are or may be intended for use in connection with any (illegally obtained) military goods.
    19. Enhancement – means and includes the modifications made to the Software that add features or functions not originally included as part of the Software.
    20. Intellectual Property Rights – means patents of any type, design rights, utility models or other similar invention rights, copyrights and related rights, trade secret, know-how or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, whether registered or unregistered, including applications (or rights to apply) and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
    21. Free Trial Period – testing period of 30 (thirty) days valid as of the moment Licensee and/or the respective Authorized User installs the Software. After expiration of the Free Trial Period the Authorized User may re-install the Software and continue to use it under the terms of this Agreement subject to the applicable License Fee.
  2. GRANT

    1. Upon execution of the License Form, subject to the terms and conditions therein and in this Agreement, Licensor grants to Licensee a non-exclusive, non-transferrable, perpetual license to install on a Designated Unit and use the Software solely in connection with the Permitted Use during the License Term and on the Territory.
    2. The Licensor owns all rights, title, and interest in and to the Software, all related technology and intellectual property rights.
    3. The Licensor is not conveying to Licensee any title, ownership, copyright or any other intellectual property rights in or related to the Software, and Licensor reserves all rights in and to the Software which are not expressly granted in writing by Licensor to Licensee.
    4. No right, express or implied, is granted under this Agreement to use any Licensor or Licensor`s affiliate trade name, service mark, or trademark. No code transfer of any form from Licensor to Licensee is implied in this Agreement.
    5. For avoidance of doubt Licensee will own all rights, title and interest in and to the Data and shall be solely responsible for the Data and its compliance with all applicable laws and regulations.
    6. Subject to the Forbidden use restrictions described in this Agreement, the Licensee grants to the Licensor and it`s licensors, affiliates, employees, contractors and advisors, a non-exclusive, non-transferable, perpetual license to use the Data solely for the Licensor`s internal business purposes, namely for the purposes of analysis, improvement, and traceability of the Software and associated services, and in any case limited to civil and educational end-use of Data.
  3. LICENSE RESTRICTIONS

    1. Licensee shall not make available the Software to any third party, except to an Authorized User, in case Software License is purchased for this specific Authorized User. Licensee shall ensure that the Authorized User uses the Software in compliance with this Agreement and shall include identical provisions with same level of protection in the respective contract/s allowing the Authorized User to use the Software. Licensee shall remain responsible for each performance/non-performance of the Authorized User and its compliance with this Agreement to the same extent as the performance/non-performance is conducted by the Licensee.
    2. Licensee shall promptly notify Licensor regarding any breach of which it becomes aware by any third party and/or Authorized User of this Agreement regarding use of the Software, and shall promptly take such action with respect to the same as Licensor may request. Licensee may not amend, modify or waive any rights under any contract with the Authorized User in any manner that would cause or permit any Authorized User to act in any manner contrary to, the requirements of this Agreement.
    3. Licensor is not responsible for the backup or storage of Data.
    4. The Licensee will not use the Software in any manner other than as per the expressly Permitted Use by this Agreement. The Licensee is solely responsible for ensuring their own compliance with all applicable laws and regulations related to the use of the Software.
    5. The Licensee will comply with the restrictions of the Forbidden Use. The Licensee shall be solely liable in case of Forbidden Use by Licensee or any third party which Licensee allowed to access and/or use the Software, including Authorized Users, if any.
    6. The Licensee shall be solely responsible for determining the appropriateness of using the Software and assume any risks associated with the exercise of permissions under this Agreement or non-compliance with the Forbidden Use.
    7. The Licensee shall be solely responsible for any damage to Licensee`s computer system, Designated Unit, mobile telephone, wireless device, other hardware or data that results from the use of the Software or the download and/or use any Data.
    8. Licensee shall not, and shall not allow third parties to, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; modify, translate, or create derivative works based on the Software; or copy, sublicense, resell, rent, lease, distribute, assign, or otherwise transfer rights to the Software. Licensee shall not remove, deface or obscure any copyright, trademark or other proprietary notice contained in the Software. Licensee shall not transfer, transmit, export, or re-export the Software or portion thereof in violation of any export control laws or regulations. Licensee will cooperate with and assist the Licensor in identifying and preventing any unauthorized use, copying, or disclosure of the Software, or any portion thereof, in case needed.
    9. These license restrictions will continue to apply following the termination of this Licensee.
  4. DELIVERY OF SOFTWARE

    1. Except otherwise agreed Licensor shall provide Licensee the Software on a file via authenticated access to the online portal (“My EnduroSat”) within 14 (fourteen) days after signature of the License Form by both Licensor and Licensee.
    2. Licensee and Authorized Users shall install and activate the Software access following the instructions of the Licensor.
  5. PAYMENT TERMS

    1. Except otherwise agreed Licensee and Authorized Users shall be entitled to use the Software for a Free Trial Period. During this trial period the Licensee and Authorized Users, may terminate the respective Software License with a termination notice with immediate effect and no liability for the terminating party. After expiration of the Free Trial Period the agreed License Fee shall apply.
    2. The License Fees and all other charges to be paid by Licensee for the Software pursuant to this Agreement shall be set forth on the License Form.
    3. If and only explicitly agreed between the Parties, Licensor shall be entitled to increase the Licensing Fees on an annual basis (at each 12th month anniversary of the Agreement) in accordance to the Consumer Price Index (CPI) valid for Bulgaria of the prior year or an equivalent publication.
    4. All License Fees are quoted in Euro. Except as otherwise provided in this Agreement, License Fees are non-refundable.
    5. Licensor issues an invoice within 5 (five) days after expiry of the Free Trial Period.
    6. Unless stated otherwise on the applicable Licensing Form, all License Fees are due and payable by Licensee within fourteen (14) days after the date of the invoice from Licensor.
    7. For any late payment, Licensor is entitled to charge Licensee interest in an amount equal to the lesser of 1.5% per month of the unpaid balance or the maximum rate permitted by law, from the date such payment is due until the date paid in full. Licensee shall also pay all sums expended (including, without limitation, court fees, legal fees) in collecting overdue payments.
    8. All License Fees set forth in the License Form are exclusive of all taxes and similar fees. Licensee shall be responsible for and shall pay in full all applicable taxes imposed upon the License Fees as per legal regulations.
  6. TERM

    1. Software License is granted for the License Term as stated in the License Form. Software Subscription will commence on the Effective Date and will end on the expiration date/ last day of the period, as specified in the License Form.
    2. Software Subscription is non-cancelable by the Licensee.
  7. TERMINATION

    1. The Licensee and the Licensor may terminate this Agreement:
      1. For cause upon 30 (thirty) days’ written notice of the other party’s material breach of any provision of the Agreement (including Licensee’s failure to pay any License Fees due) unless the breaching party has cured the breach during such 30-day period,
      2. immediately, if the other party files for bankruptcy, becomes insolvent.
    2. The Licensor may terminate this Agreement:
      1. by a written notice with immediate effect to the Licensee in case Licensee does not comply with the restrictions of Forbidden Use.
      2. immediately in case of suspected/confirmed unauthorized access to the Software.
      3. upon 30 (thirty) days written notice to the Licensee.
    3. Sections I. Definitions, IX. Intellectual Property Rights, XI. Limitation of liability, XIII. Confidentiality, XV. Miscellaneous will survive the expiration or termination of the Agreement.
  8. ADDITIONAL SERVICES

    1. Except otherwise agreed, Licensor shall provide initial technical support of 5 (five) hours scheduled at a time or times reasonably agreeable to both parties.
    2. Additional technical support shall be provided for the Software, subject to mutual agreement by the parties and to additional charge. Licensee is allowed to access any support resources offered by Licensor at its sole discretion (which may include Documentation).
    3. During the License Term, Licensor may at its own discretion, but is under no obligation to, provide updates or Enhancements to the Software.
    4. Certain Software Enhancements might be subject to additional charges and shall be confirmed in writing by both Licensor and Licensee in order to be provided by the Licensor.
    5. Licensor may provide initial training and extended training in the use of the Software at a time or times reasonably agreeable to both parties, in case explicitly agreed in writing by the Parties and subject to additional charges.
  9. INTELLECTUAL PROPERTY RIGHTS

    1. Nothing contained in this Agreement shall be construed to convey any Intellectual Property Rights in or to the Software to Licensee (or to any party claiming through Licensee) other than the license rights expressly set forth in this Agreement.
    2. Except for any rights expressly granted to Licensee under the Agreement, Licensor owns all Intellectual Property Rights in and any derivative works of the Software, any materials provided, developed or made available by Licensor in the course of performance under the Agreement, including in the delivery of any support to the Licensee and any Documentation.
    3. Licensee shall take any steps necessary to secure Licensor`s title over Intellectual Property Rights.
  10. DISCLAIMER OF WARRANTIES

    1. Licensee accepts the Software and Data “as is” basis and Licensor provides no representations and disclaims all warranties of any kind, either express or implied, including, without limitation, with regard to any claim arising out of (a) implied warranties of merchantability, fitness for the Purpose and for any other particular purpose, or non-infringement of intellectual property rights, (b) unauthorized modification or misuse of the Software by the Licensor, (c) use of the Software by the Licensor for Forbidden purposes, (d) damage to Licensee`s computer system, mobile telephone, wireless device, other hardware or data that results from the use of the Software or the download and/or use any Data.
    2. Licensor makes no warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the Data, any information or files generated during the use of the Software.
    3. Licensee agrees that it is not relying on delivery of future functionalities, based on public comments or advertising of Licensor, while signing this Agreement.
  11. LIABILITY

    1. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE (OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE LICENSEE) FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES AND ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT AND WITH THE USE OR INABILITY TO USE THE SOFTWARE AND THE DATA, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT THE LICENSOR HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.
    2. Licensor`s total liability to Licensee for all damages, losses and causes of action shall not exceed the fees paid in the preceding 6 months. The limitations of liability set forth in this Agreement shall not apply to damages resulting from the gross negligence or willful misconduct of the Licensor.
  12. INDEMNIFICATION

    1. Licensee hereby agrees to defend, indemnify and hold harmless Licensor from and against all claims, liabilities, losses, damages and costs (including reasonable legal fees) suffered by Licensor, its directors, officers, employees and agents, subcontractors, with respect to any claims made by any third party, arising from, based on and resulting from (a) any act and/or omission leading to breach of this Agreement by Licensee, (b) breach of any representations and warranties made by the Licensee, or (c) the negligence or willful misconduct of the Licensee.
  13. CONFIDENTIALITY

    1. Licensee and/or the respective Authorized User shall promptly notify Licensor in case of unauthorized access to the Software.
    2. Each party agrees to regard and preserve as confidential all information provided by the other party, which the disclosing party protects against unrestricted disclosure to others that the disclosing party or its representatives designates as confidential, internal or proprietary at the time of disclosure, should reasonably be understood to be confidential at the time of disclosure given the nature of the information and the circumstances surrounding its disclosure, including, but not limited to all information related to the business, systems, technology, operations, strategic and product plans, clients, pricing, methods, processes, financial data, programs, software, inventions, processes, designs, drawings, engineering, hardware configuration information, datasheets, user guides, marketing documents and/or products of any party, its parent company and subsidiaries and/or affiliates (“Confidential Information”). Confidential Information of either party disclosed prior to execution of the Agreement will be subject to the terms of this Agreement.
    3. The receiving party shall (a) maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the disclosing party’s Confidential Information substantially similar to those steps that the receiving party takes to protect its own Confidential Information, which shall not be less than a reasonable standard of care; (b) not disclose or reveal any Confidential Information of the disclosing party to any person other than its official representatives and employees whose access is necessary to enable it to exercise its rights or perform its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those of this Agreement; (c) not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and (d) retain any and all confidential, internal, or proprietary notices or legends which appear on the original and on any reproductions; (d) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Confidential Information;
    4. Licensee shall not disclose any information about the Agreement, its terms and conditions, the pricing or any other related facts to any third party.
    5. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law, regulation, court order or regulatory agency; provided, that the receiving party required to make such a disclosure uses reasonable efforts to give the disclosing party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the disclosing party. The receiving party shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally requested to be disclosed and shall request that all Confidential Information that is so disclosed is accorded confidential treatment.
    6. The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; (b) has become generally known or available to the public through no act or omission by the receiving party; (c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions; (d) is lawfully acquired free of restriction by the receiving party from a third party having the right to furnish such Confidential Information; or (e) the disclosing party agrees in writing is free of confidentiality restrictions.
    7. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party’s written request.
    8. The obligation of confidentiality shall survive the termination or expiration of the Agreement and remain binding upon the Parties.
  14. EXPORT

    1. The Licensee is solely responsible for complying with any applicable export laws or regulations related to the use of the Software and Data. In exercising its rights under this License, Licensee agrees to comply strictly and fully with all export controls imposed on Software and/or Data by any country or organization of nations within whose jurisdiction Licensee conducts business operations.
    2. In case the Licensor supplies the Licensee with technical data that may be subject to export control restrictions, the Licensor will not be responsible for compliance by the Licensee with applicable export obligations or requirements for such technical data.
    3. Licensee acknowledges and agrees not to export the Software into any country prohibited by the export regulation and to any country on which an embargo has been imposed according to the existing national or international export controls regulations.
  15. MISCELLANEOUS

    1. FORCE MAJEURE

      A party will be excused from a delay in performing, or a failure to perform, its obligations under this Agreement to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control (other than for the payment of amounts due), and without any fault, of such party. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. If an excusable delay continues more than ninety (90) days, the party not relying on the excusable delay may, at its option, terminate this Agreement, in whole or in part, upon notice to the other party.

    2. PRODUCT DISCONTINUANCE

      Licensor reserves the right to discontinue the Software; any component of the Software, whether offered as a standalone product or solely as a component; and/or any support resources, at any time.

    3. GOVERNING LAW

      Any disputes arising out of or in connection with this Agreement shall be resolved through good faith negotiations between the Parties. The Agreement and any claims (including any non-contractual claims) arising out of or in connection with this Agreement and its subject matter will be governed by and construed under the laws of Grand Duchy of Luxembourg.

    4. ASSIGNMENT

      Without Licensor’s prior written consent, Licensee may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Licensor may assign the Agreement to any of its affiliates.

    5. SUBCONTRACTING

      Licensor may subcontract parts of the Additional Services to third parties. Licensor is responsible for breaches of the Agreement caused by its subcontractors.

    6. SEVERABILITY

      If any provision of this Agreement is held to be wholly or in part invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement. The invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in cases of contractual gaps.

    7. ORDER OF PRECEDENCE

      In case the terms of this Agreement are in conflict with the terms of the individually negotiated License form, the terms of the latter shall prevail.

    8. NOTICES

      All notices or other communications required under this Agreement shall be in writing, including by email, and shall be deemed to have been duly given when sent to the registered addresses and emails of (a) the Licensee, as specified in the License Form and (b) of the Licensor, as follows:
      ENDUROSAT TRADING EOOD
      1A Flora Str., Business Center Obsidian,
      Sofia, 1404, Bulgaria,
      Vladislav Nikolov – CEO, email: vladislav.nikolov@endurosat.com

    9. ENTIRE AGREEMENT

      The Agreement together with the Licensing form constitute the complete and exclusive statement of the agreement between Licensor and Licensee in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them.

    10. CHANGES TO THE AGREEMENT

      Licensor reserves the right, at its own discretion, to make changes or modification to the present Agreement at any time by issuing new version of the Agreement. New versions will come into effect immediately when the updated Agreement is posted on Licensor’s website, namely: endurosat.com, unless otherwise stated. The Licensor is not obliged to notify the Licensor when such new version of the Agreement is posted considering that the Agreement is publicly available on Licensor`s website. The Licensee’s continued use of the Software following any changes or modifications of this Agreement, will constitute a binding acceptance by the Licensee of such changes or modifications.
      The Licensee is authorized to object against the changes or modifications to the Agreement within 7 days as of the date the new version is available on Licensor`s website.