LEXT OLS5000 Software License Agreement

SOFTWARE LICENSE AGREEMENT

NOTE: PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING SOFTWARE (AS DEFINED BELOW) PROVIDED OLYMPUS CORPORATION (“OLYMPUS”) UNDER THIS AGREEMENT. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU SHALL BE DEEMED TO HAVE AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU WARRANT AND REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY.  THEREFORE, NEITHER YOU NOR THE ENTITY MAY DOWNLOAD, INSTALL OR USE THE SOFTWARE IF YOU CAN’T AGREE TO FOLLOWING TERMS AND CONDITIONS OR YOU DO NOT HAVE SUCH AUTHORITY.

Section 1 (Software)

1. For the purpose of this Agreement, the following terms have the meanings as defined below:

(1) Data Acquisition Application under this Agreement means the application to observe the sample and acquire the image/measurement data by using the OLS5000 3D measuring laser microscope.

(2) Analysis Application under this Agreement means the application to display, measure, analyze, create reports and manage the data acquired by the data acquisition application.

(3) Data Acquisition Application and Data Analysis Application are collectively called as “Software” under this Agreement. The Software’s Product name is OLS50-BSW. The Software includes computer programs, associated materials, manuals and other written or electronic data, documentation and information, which are provided together with or separately as appendices of the Software by Olympus.

2. The Software may be modified or enhanced by Olympus or its licensors for debugging, upgrading or any other purposes. The Software also includes such modified or enhanced version of the Software that may be provided to you with or without charge under the same name as the Software. You shall be granted to use only the latest version of the Software under this Agreement, and you shall not use the previous version of the Software after the Software has been modified or enhanced.

3. The Software is also protected by copyright laws, other intellectual property laws or regulations or International Treaty. All title, copyrights and any other intellectual propriety rights of the Software are owned by Olympus or its licensors. In no event shall the Software be assigned from Olympus or its licensor to you.

4. You may make only one copy of the Software for purpose of backup. If you make the copy of the Software, you shall treat such copy the same as the Software.

Section 2 (Grant of License)

Subject to the terms and conditions of this Agreement, Olympus grants to you a non-transferable, non-exclusive, revocable rights to use the Software during the term of this Agreement.

Section 3 (Condition of Install)

You shall install the Software into only following computers and shall not install them into other computers. You may install them into any number of computers: provided that you should comply with the provision of this Section.

(1) For Data Acquisition Application: Computers developed by Olympus or sold, directly or indirectly, by Olympus to you.

(2) For Analysis Application: Computers which meet specification set forth in the manuals for Analysis Application.

Section 4 (Restrictions)

Without Olympus’ prior written approval, you shall be prohibited from

(1) Using the Software on multiple computers concurrently;

(2) Copying or reproducing a whole or part of the Software for any purpose other than backup;

(3) Distributing, transferring, selling, leasing, assigning, publishing or any other providing a whole or part of the Software;

(4) Creating, distributing, transferring, selling, leasing, assigning, publishing or any other providing any derivative work of the Software;

(5) Granting any third party a license to use the Software or the any derivative work of the Software;

(6) Analyzing, reverse engineering, decompiling, modifying or disassembling the Software, DLL or any part of the Software or print out the Software;

(7) Combining a whole or part of the Software with or incorporating it into any other software; or

(8) Altering, erasing or defacing any copyright, warning and other notice on the Software.

Section 5 (Limited Warranty)

1. Olympus warrants that any original disk on which the Software is recorded is free from substantial physical errors or defects that will materially interfere with the operation or functions of the Software within one (1) year after you purchase the Software or a product containing the Software.  OLYMPUS DOES NOT WARRANT THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED. OLYMPUS' EXCLUSIVE REMEDY SHALL BE REPLACEMENT OF SUCH A DISK WHICH DOES NOT MEET THE SAID LIMITED WARRANTY AND WHICH IS RETURNED TO OLYMPUS WITH A COPY OF YOUR RECEIPT.

2. The Software includes (i) some Open Source Software; and (ii) other software whose source code is intentionally published (collectively “OSS”). OSS included in the Software shall be licensed and distributed to you subject to the terms and conditions applied to such OSS. Any part of this Agreement does not restrict, limit, change or alter your rights and obligations given or imposed by such terms and conditions of the OSS licenses. The warranty, indemnity and support for the Software under this Agreement shall not be applied to the OSS.

Section 6 (Waiver)

1. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED HEREIN, THE SOFTWARE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE ACCURACY AND EFFECTIVENESS OF THE SOFTWARE IS ASSUMED BY YOU. OLYMPUS AND ITS LICENSOR DISCLAIM ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR TITLE, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE. OLYMPUS AND ITS LICENSOR DO NOT WARRANT THAT THE USE IN WHOLE OR IN PART OF THE SOFTWARE WILL BE INTERRUPTED OR ERROR FREE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE WITH THE COMBINATION OF ANY PRODUCTS SELECTED BY YOU.

2. IN NO EVENT SHALL OLYMPUS AND ITS LICENSOR BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY YOU OR ANY OTHER THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE , INABILITY TO USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF OLYMPUS OR ITS LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 7 (Indemnification)

You shall indemnify, defend and hold Olympus and its licensor harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable fees of attorneys and other professionals) arising out of or in connection with the use of the Software or your breach of this Agreement. You shall promptly notify Olympus of any such claim when you become aware it.

Section 8 (Export Regulations)

You agree that you shall comply with the Japanese Government and/or any other government or any agent or authority, law, rule, order, regulation or requirement thereof (“Export Law”) and shall not intend to, or will not, ship or transmit directly or indirectly the Software, any technical data contained in the Software, and the materials relating thereto and its media to any country or destination prohibited by Export Law.

Section 9 (Effective Period)

1. This Agreement shall become effective as of the date when you start to download, install or use the Software or a product containing the Software.

2. Without prejudice to any other rights, Olympus may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you shall stop using and destroy all the Software and all component parts of the Software.

3. Section 4, 5, 6, 7, 8 and 10 shall survive the expiration or termination of this Agreement

Section 10 (Governing Law and Arbitration)

1. This Agreement shall be governed by and construed in accordance with the laws of Japan without regard to its conflict of laws provisions.

2. In the event that any dispute or difference occurs between Olympus and you, arising out of or in connection with this Agreement, Software or breach of this Agreement, Olympus and you shall promptly make endeavor to resolve such dispute or difference by mutual discussions. Should such dispute or difference continue to remain unresolved, any such dispute or difference shall be finally resolved by binding arbitration. The arbitration shall be held in Tokyo, Japan in accordance with the rules of the International Chamber of Commerce. The arbitration proceeding shall be conducted in Japanese language.