End user license agreement

PLEASE READ THIS LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY DOWNLOADING, COPYING, ACCESSING OR USING ALL OR ANY PORTION OF THE SYSTEM DESIGNER PROVIDED BY N.IO INNOVATION, LLC, (DBA NIOLABS) (“WE,” “US,” “OUR,” OR “NIOLABS”) UNDER THIS AGREEMENT, YOU (WHICH MEANS YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS,” OR “LICENSEE”)) (EACH OF YOU AND NIOLABS BEING A “PARTY” AND COLLECTIVELY THE “PARTIES”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT, AND (II) ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU WILL HAVE NO RIGHT TO USE THE SYSTEM DESIGNER. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT AND THE ACCEPTABLE USE POLICY (“AUP”) LOCATED AT HTTPS://NIOLABS.COM/AUP TO THE EXCLUSION OF ALL OTHER TERMS.

WE RESERVE THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME, BUT IF WE DO, WE WILL BRING IT TO YOUR ATTENTION BY PLACING A NOTICE ON THE NIOLABS WEBSITE, BY SENDING YOU AN EMAIL, AND/OR BY SOME OTHER MEANS.

This Agreement covers the System Designer that is provided online by niolabs and accessed via the niolabs portal. The System Designer is intended to aid in creating, customizing, configuring, testing, and deploying “Blocks” and “Services” (as defined in the documentation accompanying the System Designer) for use with the niolabs software platform, as well as launching, commanding, configuring, and otherwise interacting with the nio software platform for control purposes. The portal includes documentation and/or other support (e.g., forums) for the operation and use of the System Designer and the nio software platform. This Agreement does not cover or provide access to the nio software platform itself, which requires a separate license.

You may have one or more other written agreements (e.g., a license agreement that gives you access to a downloadable or online version of the nio software platform) with niolabs that supplements or supersedes all or portions of this Agreement. Use of some niolabs and some non-niolabs materials and services included in or accessed through the portal and/or System Designer may be subject to additional terms and conditions. Notices about non-niolabs materials are available at: https://niolabs.com/third-party-software.
The System Designer may require activation or registration.

1. Allowable Disclosure of Information
You may discuss the existence of the nio software platform and the niolabs portal, and invite others to request access. You agree not to publish or otherwise disclose your opinion on performance and usability, any descriptions/screenshots/video of GUIs (including the process of creating instances and configuring and running services and blocks using the System Designer), and any other features that are not publicly available and to which you are allowed access only under this Agreement.

2. License Grant
(a) During the Term of this Agreement and subject to your full compliance with this Agreement, niolabs hereby grants you a limited, personal, non-sublicensable, non-transferable, non-exclusive right to access (i) the System Designer and (ii) related information (including documentation), for the sole purpose of creating, customizing, configuring, testing, and deploying “Blocks” and “Services” for use with nio software platforms for which you have a valid license, and for launching, commanding, configuring, and otherwise controlling the nio software platforms. We may impose limits on certain features or restrict your access to parts or all of the System Designer.

(b) No rights or licenses are granted except as expressly and unambiguously set forth herein in the preceding subsection (a).

3. Restrictions

The System Designer is LICENSED, NOT SOLD, only in accordance with the terms of this Agreement. This Agreement only gives you some rights, and niolabs reserves all rights not expressly granted in this Agreement. For example, this Agreement does not give you any right to and you shall not (and shall not authorize or encourage any third party to), directly or indirectly:
(a) violate any part of the AUP located at https://niolabs.com/aup when using the System Designer;

(b) use or virtualize features of the System Designer separately;

(c) publish, copy (other than any permitted backup copies), rent, lease, loan, sell, lend, sublicense, assign, or otherwise transfer any rights in or to the System Designer or any accompanying documentation (whether in printed form or online);

(d) transfer or share registration information, account information, or access credentials for the System Designer;

(e) clone the System Designer or use the System Designer or the accompanying documentation to build an application programming interface, application, or product that is competitive with any niolabs product or service;

(f) remove any proprietary notices from the System Designer or the accompanying documentation;

(g) work around any technical restrictions or limitations in the System Designer;

(h) make the System Designer available online to third parties;

(i) monitor, record, analyze, or otherwise compile or publish performance information relating to the nio software platform;

(j) reverse engineer, decompile, disassemble, deobfuscate, or otherwise attempt to discover the source code of the System Designer or allow anyone else to do so, except where expressly permitted to do so by applicable law or by licensing terms governing the use of open-source components that may be included in the System Designer;

(k) use Internet-based features in any way that could interfere with anyone else’s use of them, or to try to gain access to or use any service, data, account, or network in an unauthorized manner;

(l) use the System Designer to violate any law or regulation, any right of any person, including but not limited to intellectual property rights, contract rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement or with any terms or conditions or obligations relating to any third party website, application, API, or the like.

4. Ownership of the System Designer and Modifications

(a) The System Designer and accompanying documentation may be protected by copyrights, trademarks, service marks, patents, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. niolabs’ rights apply to the System Designer, accompanying documentation, and all interactions and functionality with niolabs APIs. You agree that the System Designer and accompanying documentation are and shall at all times remain the property of niolabs or third parties that have granted niolabs the right to license the System Designer and accompanying documentation, and you shall have no rights or interests therein except the right to use the System Designer and accompanying documentation as set forth in this Agreement. niolabs shall retain title to its copyrights, trademarks, patents, trade secrets, and other intellectual property rights in the System Designer and the accompanying documentation and all copies and any derivative works thereof except as expressly provided in this Section 3. This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by niolabs, including (but not limited to) the System Designer or niolabs’ trademarks.

(b) You shall not develop derivative works of the System Designer, including any APIs, without the prior written consent of niolabs unless such derivative work is covered under an applicable Alternate License explicitly permitting such derivation as defined in subsection (c) of this Section 4. Except as provided in subsection (c), niolabs shall own all right, title, and interest (and all related moral rights and intellectual property rights) in and to the System Designer, including any copies and derivative works thereof.

(c) If any part of the System Designer is covered by a separate license provided by niolabs that explicitly permits the creation of derivative works (“Alternate License”), the terms of the Alternate License, if applicable, will supersede the prohibition on the creation of derivative works and the ownership rights of such derivative works detailed in subsection (b) of this Section 4 only with respect to the particular component or components of the System Designer to which the Alternate License applies.

5. Ownership of Blocks, Services, and Configuration Information

(a) niolabs shall retain all right, title, and interest in the base templates for Services and Blocks provided as part of, or for use with, the nio software platform and the System Designer under this Agreement.

(b) The owner (whether you, niolabs, or a third party) shall retain all right, title, and interest (if any) in any Blocks or Services that you upload to, or otherwise use with, the System Designer under this Agreement. You understand and agree that niolabs may create similar or identical Blocks to yours, niolabs shall have all right, title, and interest in any Blocks created by niolabs, and niolabs shall have the right to use such Blocks for any purpose, including commercialization, without compensating you.

(c) You shall have all right, title, and interest (if any) to configuration information that you create as an output of the System Designer.

6. Registration

As a condition to using the System Designer, you may be required to supply niolabs with certain registration information. You agree to provide niolabs with your own accurate and complete registration information, and to update your registration information when it changes.

7. Access Control using the System Designer

You understand and agree that the System Designer is used by niolabs to monitor nio software platform instances that may be provided to you under a separate license agreement to ensure compliance with applicable license terms. niolabs may suspend or revoke your use of the System Designer pursuant to enforcement of such license terms and may suspend or revoke your use of the portal in order to do so.

8. Access to Your Devices

The System Designer may include features to download or otherwise save Blocks, Services, or configuration information to one or more of your devices, as well as features to instantiate, command, configure, and otherwise interact with instances of the nio software platform that are located on your devices. Your devices include devices that you select for such saves, devices on which you have the nio software platform installed, and cloud versions of the nio software platform that you control. You hereby grant permission for such access to your devices by the System Designer in order to enable this functionality if you use such features.

9. System Designer Reporting; Licensee Data and Privacy

(a) You understand and agree that the System Designer may report to niolabs monitoring, error, and performance data (e.g., the number of Instances that have been launched or are currently running, Service and Block crashes and restarts, the number and types of Blocks and Services created or modified, the number and types of Blocks in a Service, the number and types of Services and their interconnections, device information (e.g., platform type, CPU type, amount of memory, and type of operating system) and similar information) that may be used by niolabs to facilitate or improve the operation, functionality, and use of the System Designer and the nio software platform.

(b) Unless we receive your prior written consent, niolabs: (i) shall not access, process, or otherwise use Licensee Data (“Licensee Data” shall mean data in electronic form input by or collected from you during your use of the System Designer) other than as described above in subsection (a); and (ii) shall not intentionally grant any third party access to Licensee Data, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, we may disclose Licensee Data as required by applicable law or by proper legal or governmental authority. niolabs’ privacy policy, available at https://niolabs.com/privacy-policy, may provide additional information with respect to personally identifiable information.

(c) You understand and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System Designer, you assume such risks. niolabs offers no representation, warranty, or guarantee that Licensee Data will not be exposed or disclosed through errors or the actions of third parties.

10. Storage

niolabs may, in its sole discretion, provide online storage for Blocks, Services, or configuration information developed or used by you through the System Designer. niolabs makes no guarantee of the availability of such storage, the provision of a specific amount of storage, or the retrievability of stored Blocks, Services, or configuration information. You are responsible for creating and maintaining your own backups of Blocks, Services, and configuration information. niolabs may permanently erase any saved data in online storage controlled by niolabs under this Section 10 if this Agreement is terminated or if your account is suspended or terminated for 30 days or more. This Agreement does not provide any data storage for data that is received, processed, or sent by a nio platform instance under your control.

11. Term and Termination

Your right to use the System Designer continues until expiration of your nio software platform’s license or it is terminated by either Party as detailed below. You may terminate this Agreement by discontinuing use of the System Designer and terminating your portal account. We may immediately terminate your use of and access to the System Designer if you violate any term of this Agreement or the AUP, to enforce the license terms of a separate nio software platform license, or at our discretion if you are an early access user. Termination or expiration of this Agreement for any reason shall not release you from any liabilities or obligations set forth in this Agreement which (i) the Parties have expressly agreed shall survive any such termination or expiration, or (ii) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration, including Sections 3, 4, 5, 14, 16, 17, and 18.

12. Updates

The System Designer is subject to modification from time to time at niolabs’ sole discretion for any purpose niolabs deems appropriate. Any upgrades, patches, enhancements, or fixes for the System Designer that niolabs provides you will become part of the System Designer and subject to this Agreement. You understand and agree that niolabs shall have no obligation under this Agreement to provide any such upgrades, patches, enhancements, fixes, or any other support for the System Designer.

13. Service Availability

niolabs will use reasonable efforts to ensure that the System Designer is available twenty-four hours a day, seven days a week. However, there will be occasions when access to the System Designer will be interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment. niolabs will take reasonable steps to minimize such disruption where it is within niolabs' reasonable control. You agree that niolabs will not be liable in any event to you or any other Party for any suspension, modification, discontinuance, or lack of availability of the System Designer. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the System Designer, including, without limitation, hardware, software, data plans, and Internet access services. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the System Designer.

14. Open Source Software

The System Designer may contain or otherwise use open source software, which you may use under the terms and conditions of the specific license under which the open source software is distributed. THIS OPEN SOURCE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL NIOLABS, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. Information about open source software used with the System Designer is available at https://niolabs.com/third-party-software.

15. Third Party Services

The System Designer may permit you to link to websites, services, or resources on the Internet, and those websites, services, or resources may contain links to the System Designer. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such website or resource.

16. DISCLAIMER

NIOLABS PROVIDES, AND YOU ACCEPT, THE SYSTEM DESIGNER “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (i) NIOLABS HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (ii) NIOLABS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM DESIGNER WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (iii) NIOLABS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM DESIGNER IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT DATA PROCESSED BY THE SYSTEM DESIGNER WILL REMAIN PRIVATE OR SECURE. IF YOUR LOCAL LAW DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THEN ANY IMPLIED WARRANTIES, GUARANTEES, OR CONDITIONS ARE LIMITED AS MUCH AS THE LOCAL LAW ALLOWS.

17. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL NIOLABS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, OR DAMAGES RESULTING FROM YOUR USE OF ANY SUBJECT MATTER COVERED BY THIS AGREEMENT. IF YOUR LOCAL LAW ALLOWS THE RECOVERY OF DAMAGES FROM NIOLABS EVEN THOUGH THIS AGREEMENT DOES NOT, YOU CANNOT RECOVER MORE THAN YOU PAID TO ACCESS THE SYSTEM DESIGNER (OR THE MINIMUM ALLOWED BY LOCAL LAW IF YOU ACQUIRED SUCH ACCESS FOR NO CHARGE). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOU HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

18. Miscellaneous

(a) niolabs has not agreed to and does not agree to treat as confidential any suggestion or idea for improving or otherwise modifying any of niolabs’ products or services (“Feedback”) that you provide to us, and nothing in this agreement will restrict niolabs’ right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. niolabs will not publish or otherwise make public any of your personal information obtained as part of the Feedback without first obtaining your written permission.

(b) For all purposes of this Agreement, you and niolabs shall be and act independently and not as partner, joint venturer, agent, employee, or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of niolabs, express or implied, and you shall not attempt to bind niolabs to any contract.

(c) To the extent permitted by applicable law, you hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

(d) niolabs will not be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

(e) This Agreement will be governed solely by the internal laws of the State of Colorado without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Denver, Colorado; you hereby agree to service of process in accordance with the rules of such courts. The Party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.

(f) This Agreement, including the AUP, sets forth the entire agreement between you and niolabs and supersedes all prior or contemporaneous writings, negotiations, discussions, and representation with respect to its subject matter unless specifically recited herein.