Effective as of August 9, 2019.
1. Definitions. Certain definitions used in this Agreement are set forth below, other capitalized terms used herein shall have the respective meanings set forth elsewhere in this Agreement.
1.1 “Initial Software Subscription End Date” means the ending date of the period beginning on the Software Subscription Start Date and continuing for the duration of the Subscription Period.
1.2 “Licensee Data” means all data and other content provided by Licensee to Latch in connection with using the Software and Latch’s services related thereto, but excluding, for clarity, any aggregated or anonymized data derived from such data.
1.3 “License Fee” means the license fee amount set forth in the Ordering Document.
1.4 “Licensed Properties” means properties owned or managed by Licensee and equipped with Latch’s Hardware set forth in the Ordering Document.
1.5 “Ordering Document” means the mutually agreed upon order forms for Services signed by authorized representatives of Latch and Licensee, each of which will incorporate the terms and conditions of and be deemed to be a part of this Agreement.
1.6 “Hardware” means Latch’s proprietary electronic lock or other access device set forth in the Ordering Document.
1.7 “Software” means software provided by Latch, including Latch’s web-based access management platform (“Platform”), websites, and mobile application (“App”) and all Updates (defined below) thereto.
1.8 “Services” means the Software and all services provided by Latch in connection with the Software, and all end user documentation related to the foregoing (“Documentation”).
1.9 “Subscription Period” shall mean the subscription period set forth in the Ordering Document.
1.10 “Software Subscription Start Date” means the software subscription start date set forth on the Ordering Document.
2.1 License Grant. Subject to all the terms of this Agreement, including the payment of all applicable fees, Latch grants Licensee during the Initial Term and any Renewal Terms, as applicable, a nonsublicensable, nonexclusive, revocable license to download and run the Software in object code form on Licensee’s devices solely for (a) Licensee’s purpose in managing access to the Hardware within the Licensed Properties and (b) otherwise as necessary to operate the Hardware within the Licensed Properties.
2.2 Licensee Data. Licensee hereby grants Latch a worldwide, perpetual, sublicensable, nonexclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Licensee Data in connection with operating and improving the Services.
2.3 Licensee Trademarks. Licensee hereby grants Latch a worldwide, perpetual, nonexclusive, royalty-free license to use, copy, reproduce, perform, display, distribute and transmit Licensee’s trademarks for marketing and promotional purposes.
2.4 Third Party Materials. In connection with the Services, Latch may use, or may provide Licensee with access to, software, source code or other technology licensed to Latch from third parties, and which may be owned by such third parties, including without limitation open source software which may be covered by a different license (collectively, “Third Party Materials”). Licensee acknowledges and agrees that Latch does not make any warranties or guarantees regarding Third Party Materials and is not responsible for the operation or failure of any Third Party Materials.
2.5 Accounts. Subject to the terms of this Agreement, Latch will provide Licensee with access privileges that permit Licensee to access and manage the Services and access Licensee Data and other related data (an “Account”). Licensee may create additional Accounts for its employees, agents, and customers that require access management capability for the Licensed Properties. Licensee must take reasonable steps to protect access to the Services and Licensee’s Account and will be responsible for (a) maintaining the security of Licensee’s Account and all passwords and files associated therewith; (b) all uses of Licensee’s Account, with or without Licensee’s knowledge or consent and (c) for the acts or omissions of any person who accesses the Services using Accounts, passwords or access procedures provided to or created by Licensee.
4. Restrictions. Licensee’s use of the Services is subject to the following restrictions: (a) Licensee shall use the Services solely as licensed above, and shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Services or make the Services available to any third party for any use; (b) Licensee shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of, any part of the Services (except solely to the extent affirmatively required under applicable statutory law); (c) Licensee shall not use or access the Services for benchmarking or competitive analysis, or in order to build a similar or competitive product or service; (d) except as expressly stated herein, Licensee shall not copy, reproduce, distribute, republish, download, display, post, or transmit the Services in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; (e) Licensee shall only use the Services in compliance with all applicable laws, rules and regulations, including without limitation all data privacy and security regulations and building codes and regulations. Licensee agrees to ensure that there is no breach, compromise or violation, by Licensee’s employees, consultants, agents, customers, suppliers or independent contractors, of such obligations.
5. Modifications. Latch reserves the right to modify the Services (in whole or in part) in a way that materially reduces the functionality of the Services used by Licensee in accordance with this Agreement at any time by giving 90 days’ prior written notice to Licensee, provided that in such an event, Licensee may terminate this Agreement upon at least 15 days’ prior written notice to Latch and receive a prorated portion of License Fee amounts prepaid by Licensee for the remainder of the Subscription Period.
6. Services Updates. Latch may from time to time develop patches, bug fixes, updates, upgrades and other modifications to the Services and may, in its discretion, make them generally publicly available to its Users (collectively, “Updates”). Licensee acknowledges that such Updates may be required to use certain features or components of the Services, and Licensee agrees (a) that Licensee will promptly install any Updates Latch requires or makes available to Licensee and (b) to the automatic installation of the Updates if performed by or on behalf of Latch.
7.1 Licensee. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Licensee (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Licensee Data.
7.2 Latch. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Latch (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, all copies, modifications and derivative works thereof, and all Latch trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights. The Services (and all copies thereof) are licensed to Licensee, not sold, under this Agreement.
7.3 Feedback. Licensee acknowledge that any suggestions, ideas, comments or other feedback (“Feedback”) Licensee provides to Latch regarding the Services shall become Latch’s sole and exclusive property without any compensation to Licensee, and Latch may, in its sole discretion, decide whether and how to use such Feedback. Licensee hereby assigns to Latch all of Licensee’s right, title and interest in the Feedback, including but not limited to all intellectual and proprietary rights.
8. Fees and Payment.
8.1 Fees. Upon execution of this Agreement, Licensee shall pay Latch the License Fees as set forth in the Ordering Document, in accordance with the terms set forth therein. All payments shall be made in US Dollars. Any payments more than 30 days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law.
8.2 Taxes. Prices do not include any tax, value added tax or other governmental charge or assessment on the sale, shipment, production or use of any products sold to Licensee hereunder. Licensee agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Latch’s net income.
8.3 Fee Changes. Latch reserves the right to change the fees due for the Services upon notice to Licensee; provided that such change will not become effective until the next Renewal Term (defined below). Upon receipt of such notice, if Licensee does not agree to such fee change, Licensee may terminate this Agreement in accordance with Section 15.1, with such termination to become effective as of the next Renewal Term.
10. Warranties. Each party represents that it has full power, right and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other party herein.
11. Exclusions/Restrictions. Latch shall have no obligations to Licensee with respect to the Services for errors that (a) result from alteration, modification or damage to the Services not performed by Latch; (b) result from any combination of the Services with any computer hardware or software not provided by Latch; (c) result from use of the Services other than in accordance with its Documentation; (d) result from use of other than the most-current release of the Services; (e) result from the installation of the Services on any hardware that is not supported by Latch; or (f) are not reproducible in standalone form.
12. Indemnity. Licensee shall defend, indemnify and hold harmless Latch and its employees, from any third-party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee’s use of the Services in a manner that does not comply with the terms of this Agreement.
13. Warranty Disclaimer. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND LATCH DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ALL, EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT LICENSEE’S SOLE RISK. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
14. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER LATCH NOR ITS SUPPLIERS, DISTRIBUTORS, OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS OR CONDITIONS RELATED THERETO UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY FOR ANY (A) LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (B) INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOSS OF REVENUES AND LOSS OF PROFITS OR (C) ANY AMOUNTS THAT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY LICENSEE FOR THE SERVICES THAT CAUSED SUCH DAMAGE IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM ARISING. THE FOREGOING SHALL APPLY EVEN IF LATCH KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
15. Term; Termination.
15.1 Term; Termination. This Agreement shall commence on the Effective Date set forth on the Ordering Document and continue until the Initial Software Subscription End Date, unless terminated earlier as described in this Section 15 (the “Initial Term”). After the Initial Term, this Agreement shall automatically renew for additional subsequent terms that are equal in length to the Subscription Period (each, a “Renewal Term”), unless and until (a) either party provides the other party of written notice of its intent not to renew at least 90 days prior to the end of the then-current term or (b) Licensee selects a different Subscription Period term by providing Latch of written notice thereof at least 90 days prior to the end of the then-current term. Either party may terminate this Agreement upon written notice for the other party’s material breach, provided, however, that the terminating party has given the other party at least 30 days’ written notice of and the opportunity to cure the breach. Furthermore, Latch may terminate this Agreement for Licensee’s failure to pay any amounts due pursuant to this Agreement within 30 days of such payment becoming due. Termination for breach will not alter or affect the terminating party’s right to exercise other remedies for breach.
15.2 Early Termination Fee. If Licensee terminates this Agreement prior to the end of the Initial Term, except in accordance with Section 5 or 8.3 herein, Licensee shall pay to Latch a termination fee as follows (“Termination Fee”):
A. If Licensee elects to pay the License Fee in monthly installments pursuant to the Ordering Document, Licensee shall pay Latch 75% of the License Fee that would have been due for the remainder of the Initial Term. Licensee will remit the Termination Fee to Latch within 30 days of Licensee's notice of termination.
B. If Licensee elects to prepay the entire License Fee pursuant to the Ordering Document, Latch shall return 25% of the Prorated Prepaid License Fee to Licensee within 30 days of Licensee's notice of termination. For the purposes of this provision, “Prorated Prepaid License Fee” shall be calculated as follows: (the amount of the License Fee actually paid in advance by Licensee to Latch for the Subscription Period) multiplied by (the fraction generated by dividing the number of full months remaining in the Subscription Period at the time of termination by the total number of months in the Subscription Period).
15.3 Effect of Termination. Upon termination of this Agreement, Licensee agrees to pay Latch all amounts due or accrued as of the date of such termination, including without limitation, the Termination Fee if applicable. Upon termination of this Agreement, or either party’s request at any time, (a) each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party and (b) Licensee’s license to the Services will terminate. Sections 1, 2.3, 2.4, 3, 4, 7, 8 (to the extent any payment obligations remain outstanding), 9, 11-14, 15.2, 15.3, and 16-20 shall survive any termination or expiration of this Agreement. For clarity, there will be no refunds in the event this Agreement is terminated.
16. Export. Licensee agrees to comply with all U.S. and foreign export laws and regulations to ensure that neither the Services, nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations.
17. Confidential Information.
17.1 Definition. Each party agrees that the business, technical and financial information of the other party, including without limitation, all software, source code, inventions, algorithms, know-how and ideas, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure; (b) is or becomes known to the general public, through no act or omission on the part of the receiving party; (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation or (d) is independently developed by the receiving party. Latch’s Confidential Information shall include the Services and all Documentation and the terms and conditions of this Agreement.
17.2 Confidentiality. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information other than in accordance with this Agreement and shall similarly bind its employees, consultants, independent contractors, and clients in writing or ensure such employees, consultants, independent contractors, and clients are similarly bound by existing agreement, law, or fiduciary duty. For the avoidance of doubt, Latch may use Licensee’s Confidential Information in connection with providing the Services.
17.3 Return of Confidential Information. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party or, at the option of the disclosing party, destroyed (and so certified to the disclosing party), and receiving party will make no further use of such materials.
17.4 Required Disclosure. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
17.5 Relief. Money damages will not be an adequate remedy if this Section 17 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
18. U.S. Government End Users. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
19. Governing Law; Jurisdiction & Venue; Attorneys’ Fees. This Agreement and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York without taking into account its principles on conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Exclusive jurisdiction and venue for any litigation arising under this Agreement is in the federal and state courts located in New York, NY and both parties hereby consent to such jurisdiction and venue for this purpose. In any such action, suit or proceeding, the successful or prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in connection with that action, suit or proceeding, in addition to any other relief to which such party may be entitled.
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