CONTAINER SOFTWARE SERVICES SUBSCRIPTION ON SAGEMAKER/AWS EULA

END USER SUBSCRIPTION AGREEMENT FOR DIMENSIONAL MECHANICS, INC. (“DM”) NEOPULSE™ FRAMEWORK 3.0 CONTAINERS ON SAGEMAKER ON AMAZON WEB SERVICES (AWS)

NOTICE TO USER (“USER”): THIS AGREEMENT GOVERNS USE BY USERS OF THE DM SOFTWARE DESCRIBED HEREIN. USER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY USER. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND TO THIS CONTRACT, OR USING THE SOFTWARE, USER ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., CONSULTANT OR CONTRACTOR) THAT USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.
THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE TO WHICH USER HAS OBTAINED A VALID SUBSCRIPTION REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
YOU MAY HAVE ANOTHER WRITTEN AGREEMENT WITH DM THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
1.	Definitions.
1.1 “DM” means DimensionalMechanics, Inc.
1.2 “Software” means NeoPulse™ version 3.0 containers and portable inference models made accessible to Users of SageMaker within the Amazon Web Services environment used on a per-hour usage basis.
1.3 “Amazon” means Amazon.com, Inc., 1200 12th Avenue South, Suite 1200, Seattle, Washington 98144.
1.4 “Container” means NeoPulse™ containers containing software applications, libraries, data and associated configuration settings as made available on AWS.
1.5 “AWS” means the Amazon Web Services comprising a virtual computing environment including, without limitation, one (1) or more Containers and the “Amazon Elastic Compute Cloud”, as defined at http://aws.amazon.com/ec2.
1.6 Amazon Web Services Account means the User’s AWS account registered on Amazon.com used to launch Container instances, store and transfer data, run applications and receive billing.
1.7 “Authorized Platform” means the Linux operating system.
1.8 “Authorized Users” means employees and individual contractors (e.g., temporary employees) of User that uses the Software.
1.9 “Documentation” means the user manuals and technical publications as applicable, supplied in connection with Software relating to the use and administration of the Software.
1.10 “Sample Application Code” means the sample software code, application programming interface, header files and related information, and the file format specifications, if any, included as part of the Software as described in the Documentation or a “Read Me” file accompanying the applicable Software.
2. Subscription.
Subject to the terms and conditions of this Agreement, DM grants User a non-exclusive right to permit Authorized Users to use the Software solely on SageMaker on AWS on the Authorized Platforms, in the manner, on the versions of AWS, and for the purposes described in the Documentation.
2.1 Use Limitations. User may only use the Software in an active state for the number of hours for which User has purchased such Container subscription.
2.2 Sample Application Code. User’s Authorized Users may use the Sample Application Code solely for purposes of facilitating use of validly accessed Software in accordance with this Agreement.
2.3 Documentation. User may make and distribute copies of the Documentation for use by Authorized Users in connection with use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that User makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.
2.4 Outsourcing. User may permit use of the Software subscription to an Authorized User to operate the Software on User’s behalf, provided that: (a) User is responsible for ensuring that any such Authorize User agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to User; (b) such use is only in relation to User’s direct beneficial business purposes as restricted herein; (c) such use does not represent or constitute an increase in the scope or number of subscriptions provided hereunder; and (d) User shall remain fully liable for any and all acts or omissions by the Authorized User related to this Agreement.
2.5 Restrictions
2.5.1 No Modifications, No Reverse Engineering. User shall not modify, port, adapt, shadow or translate the Software. User shall not reverse engineer, decompile, recompile, design around, shadow, disassemble or otherwise attempt to discover the source code of the Software.
2.5.2 No Unbundling. The Software may include various applications, utilities and components, or may support multiple platforms and languages. Nonetheless, the Software is designed and provided to User solely within SageMaker in AWS as permitted herein. User is not required to use all component parts of the Software, but User shall not unbundle the component parts of the Software. User shall not unbundle or repackage the Software for distribution, transfer or other disposition.
2.5.3 No Transfer. User shall not assign or transfer the Software or User’s rights in the Software subscription, or authorize any portion of the Software to be copied onto or accessed from another individual or entity except as may be explicitly provided in this Agreement.
2.5.4 Prohibited Use. Except as expressly authorized through a separate custom hosting agreement, User is prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; (c) providing use of the Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, time sharing basis, or as part of a hosted service; or (d) using any component, library, or other technology included with the Software other than solely in connection with its use of the Software. Additionally, User may not use the Software in connection with High Risk Activities. "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Software could lead to death, personal injury, or environmental damage. The Software analytics are predictive in nature and not guaranteed to be accurate.
2.5.5 License Limit. User shall only use the Software within SageMaker in AWS and only as allowed by the User’s designated instance type and according to the terms and conditions of this Agreement.
2.5.6 Export Rules. User acknowledges that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that User will comply with the Export Laws.
2.5.7 In the event that User fails to comply with this Agreement, DM may terminate the license (with all other rights of both parties and all other provisions of this Agreement surviving any such termination).
2.6 Delivery. The Software shall be made available solely via the Container.
3. Intellectual Property Rights.
The Software and Documentation are the intellectual property of and are owned by DM and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of DM and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant User any intellectual property rights in the Software and all rights not expressly granted are reserved by DM. Notwithstanding the foregoing, User has a limited revocable license during the paid subscription term to  download into User’s S3 bucket (1) the trained pim and (2) related metadata created by the Software solely for the purpose of generating an endpoint for real-time inference or batch transform jobs.
4. Updates.
All upgrades and updates are provided to User at DM’s sole discretion and are subject to the terms of this Agreement Any obligations that DM may have to support previous versions during the subscription term may end upon the availability of an update. Upgrades and updates may be offered to User by DM with additional or different terms.
5. Support.
For the avoidance of doubt, DM has no liability and provides no support for the hardware or any SageMaker/AWS services provided by Amazon except as described by any product service support included on the Container Technical Specifications Page.
6. NO WARRANTY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED BY DM “AS IS, WHERE IS” WITHOUT WARRANTY OF ANY KIND, AND DM HEREBY DISCLAMS ANY EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY, INCLUDING THE IMPLIED WARRANTIES OF PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED INDEMNITIES. WITHOUT LIMITING THE FOREGOING, DM MAKES NO WARRANTY THAT (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (III) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS; OR THAT (IV) ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DM OR THROUGH OR FROM USE OF THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
DM SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. DM ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT OF YOUR USE OF THE SOFTWARE.
DM DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY AMAZON OR OTHER THIRD PARTIES ACCESSIBLE THROUGH SAGEMAKER OR AWS. DM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT SAGEMAKER OR AWS, AND SHALL NOT BE LIABLE FOR, AMAZON OR OTHER THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
DM WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF USING SAGEMAKER OR AWS OR A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL DM OR ITS AFFILIATES OR SUPPLIERS BE LIABLE TO USER FOR ANY LOSS, DAMAGES, CLAIMS, PENALTIES, TAXES, ASSESSMENTS, FINES OR COSTS WHATSOEVER INCLUDING ANY DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF A DM REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. DM’S ABSOLUTE AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO FIFTY UNITED STATES DOLLARS ($50). THIS LIMITATION WILL APPLY EVEN IF DM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 7 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
8. Governing Law.
This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in: (a) the State of Washington, if a subscription to the Software is purchased when User is in the United States, Canada, or Mexico; (b) Japan, if a subscription to the Software is purchased when User is in Japan, (c) Singapore, if a subscription to the Software is obtained when User is in a member state of the Association of Southeast Asian Nations, Mainland China, Hong Kong S.A.R., Macau S.A.R., Taiwan, or the Republic of Korea; or (c) England and Wales, if a subscription to the Software is purchased when User is in any other jurisdiction not described above. The respective courts of King County, Washington when Washington law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England and Wales applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. When Singapore law applies, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference in this section. There shall be one arbitrator, selected jointly by the parties. If the arbitrator is not selected within thirty (30) days of the written demand by a party to submit to arbitration, the Chairman of the SIAC shall make the selection. The language of the arbitration shall be English. Notwithstanding any provision in this agreement, DM or you may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. This agreement will not be governed by the following, the application of which is hereby expressly excluded: (x) the conflict of law rules of any jurisdiction, (y) the United Nations Convention on Contracts for the International Sale of Goods, and (z) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
9. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates and upgrades may be offered to User by DM with additional or different terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between DM and User relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. User shall comply with all applicable laws and regulations pertaining to this Agreement.
10. Relationship.  This Agreement shall not be construed to create any employment, partnership, joint venture, franchise, or agency relationship between DM and User, nor shall this Agreement be construed to authorize either Party to enter into any commitment or agreement binding on the other Party.
11. Term and Termination.
This Agreement shall remain in effect until either (a) any material breach of this Agreement by User occurs, or (b) User’s cancellation of the Software on AWS. Upon the occurrence of a or b, above, this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, User shall discontinue use of the Software and shall destroy the Software, Documentation and all copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive termination of this Agreement: 1 (Definitions), 3 (Intellectual Property Rights), 6 (No Warranty), 7 (Limitation of Liability), 8 (Governing Law), 9 (General Provisions), and 11 (Term and Termination). DM reserves the right, in its sole discretion, to change, cease to provide or discontinue support for the Software at any time without prior notice.
12. Third-Party Beneficiary.
User acknowledges and agrees that DM licensors (and/or DM if User obtained the Software from any party other than DM) are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or DM.
13. Third Party Software.
The Software may contain third party software which requires notices and/or additional terms and conditions. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs User’s use of that third party component. (For e.g., See the TensorFlow License at http://www.apache.org/licenses/LICENSE-2.0.)