VIRTUOSO CORE FRAMEWORK END USER LICENSE AGREEMENT V1.0

This Virtuoso™ Core Framework End User License Agreement (the “Agreement”) contains the terms and conditions upon which Virtuoso Software, LLC, an Oklahoma limited liability company (“Virtuoso”), grants to you (“Licensee”) a limited license to the Virtuoso™ Core Framework and related software. Please read this Agreement carefully. By clicking “I AGREE”, obtaining a Virtuoso™ Core Framework activation key, downloading, installing or otherwise using the Software as defined herein, you acknowledge that you have read and accept the terms and conditions of this Agreement in its entirety. You also acknowledge that you understand the software package or packages that this Agreement applies and relates to.

If you are entering into this Agreement within the scope of your employment or through an engagement as an independent contractor, the term “Licensee” includes your employer or principal, as applicable, and you warrant and represent to Virtuoso that you are authorized to enter into this Agreement on your employer’s or principal’s behalf.

The Virtuoso™ Core Framework is understood to consist of two types of software packages or functionality: “design-time” packages and “run-time” packages. Run-time packages consist of software components and assemblies that are intended to be used during the run-time execution of a derivative Host Application that the Designated User develops in conjunction with the Core Framework. Run-time package examples include port metadata and host component libraries provided by the Core Framework. A deployment of a Host Application written by the Designated User would generally involve distribution of the run-time packages of the Core Framework.

Design-time packages consist of executables and tools that the Designated User uses during the development of the derivative Host Application to automate or assist its development but are not required to execute with the Host Application in order for the Host Application to perform its function. Examples of design-time packages include the schematic editor and component configuration tools. A deployment of a Host Application written by the Designated User would not involve distribution of the design-time packages of the Core Framework.

The terms and conditions that follow cannot be altered, modified, or amended without the written consent of Virtuoso.

  1. DEFINITIONS

    1. Confidential Information – The Software and all of the software code (including, but not limited to, any third party software licensed with the Software), Documentation, Library and any Trade Secret, concepts, ideas, improvements, processes, plans, designs, specifications, architecture, database tables and structures, data record layouts, prototypes, models, methods, processes, algorithms, content, data bases, and all other Virtuoso information, whether patentable or not, that is provided, developed, conceived or in any way disclosed by Virtuoso to Licensee.
    2. Deployment – Refers to the release and distribution of a Host Application developed by the Licensee, and subsequent use of the Host Application by Host Users.
    3. Designated User (“User”) – An individual, employee, agent, or contractor of Licensee who has been trained in the use of the Software and operates it internally with the permission of Licensee.
    4. Documentation – “Documentation” means collectively: (i) all of the written, printed, electronic, or other format materials published or otherwise made available by Virtuoso to Licensee that relate to the technical aspects of the Software including its functional, operational, and/or performance capabilities; and, (ii) all user, operator, system administration, technical, support, and other manuals and all other written, printed, electronic, or other format materials published or otherwise made available by Virtuoso that describe the functional, operational, and/ or performance capabilities of the Software. Documentation shall not include source code or executable(s). Virtuoso provides standard online Documentation with its software products. Licensee has the right to print online Documentation as needed for Licensee’s internal purposes.
    5. Effective Date – The Effective Date shall be the date of Licensee’s activation of the Software license. It is understood that acceptance of the terms of this Agreement is required before the Software may be downloaded, purchased, installed, or activated.
    6. Host Application – Any software application built by the Designated User which either incorporates the Virtuoso™ Core Framework run-time components or made use of the Virtuoso™ Core Framework design-time components during the Host Application development.
    7. Host User – A third party individual or third-party employee that uses a Host Application deployed by the Licensee.
    8. Library – The Library consists of the content and component library, including example projects which may be accessed by Licensee via the Site. It is understood that the Virtuoso™ Core Framework license may include content, components, and example projects, while other content, component, and example projects offered by the Virtuoso™ content marketplace may require an additional, separately purchased license. It is also understood that the Virtuoso™ Core Framework license is needed as a prerequisite in order to use separately purchased component libraries and content.
    9. Montage Software – A third party software licensing and distribution platform which Virtuoso may use at its discretion for the purposes of account management services and software licensing and distribution.
    10. Permitted Purpose – The Virtuoso™ Core Framework is permitted for educational or commercial purposes. It is understood that a contractor or consultant may utilize the Software in connection with providing professional services for its client or customer.
    11. Site – Refers to Virtuoso’s web site (https://www.virtuoso-software.com/) or a third party site such as Montage Software (https://www.montage-software.com) which operates and maintains Virtuoso user accounts, subscriptions, and/or software products.
    12. Software – The Virtuoso™ Core Framework and associated media, modules, executables, object code, binary files, databases, printed and/or online Documentation, the Library and other materials that are licensed to Licensee. Software also includes other computer code which may be developed by Virtuoso for use by Licensee as part of this Agreement.
    13. Virtuoso Data – Data that is collected by Licensee through the use of the Software and which is transmitted to and stored by Virtuoso or Montage Software.
    14. Virtuoso’s Intellectual Property – Proprietary information and/or data including, but not limited to, Trade Secrets, copyrights, trademarks, inventions (whether patentable or not), concepts, ideas, methods, techniques, formulas, algorithms, logic designs, screen displays, schematics, source and object code, computer programs, and example projects.
    15. Term – The initial term for the use of the Software under this Agreement shall begin on the date of license activation and shall end after one year. The Parties can extend the initial term of this Agreement by mutual written agreement.
    16. Territory – Worldwide.
    17. Trade Secret – Trade Secret shall mean, without limitation, any scientific or technical data, information, design, process, procedure, formula, or improvement that is commercially valuable to Virtuoso and its distributors (including Embeddetech, Inc. and Montage Software, LLC) and not generally known in the industry.
    18. Virtuoso™ Embedded Target Developer Toolkit – A set of packages licensed separately from the Virtuoso™ Core Framework, which allows an embedded target C/C++ application to be built and run as a Virtuoso™ Embedded Target. Examples of Virtuoso™ Embedded Target Developer Toolkit components include the Local Visual Studio C Target Plugin and its Target Model Builder, which are provided by the Embedded Target Developer Toolkit.
    19. Virtuoso™ Embedded Target – A Virtuoso™ Embedded Target is understood to be a specific Virtuoso™ host component or family of host components which manage interoperability of a C/C++ application with other host components in the host during the runtime of the Host Application.
  2. LICENSE

    1. Subject to the terms of this Agreement and timely payment of any required royalty fees, Virtuoso hereby grants to Licensee, and Licensee accepts, a nonexclusive and nontransferable right and license to use the Software for its internal Permitted Purposes in the Territory, without a right to sublicense, during the Term for the Permitted Purpose, according to the terms set out herein. All other uses are prohibited.
    2. b. Use of the Software may include the use of third party software components. The third-party software terms will govern Licensee’s use of the third-party software, and if there is inconsistency, those terms will take precedence over the terms of this Agreement for the third-party software. Licensee agrees that the owners of the Third-Party Software are intended third party beneficiaries to this Agreement in relation to Licensee’s use of third party software.
  3. ACCOUNT AND PASSWORD

    1. Pursuant to this Agreement, Licensee will use an online account to access, activate, and use the Software. The online account may be maintained by Virtuoso or may be maintained by a third party such as Montage Software. Licensee is responsible for maintaining the confidentiality of its account and login password and is responsible for administration of the account. The account or its assets may not be transferred to a third party without prior written consent of Virtuoso. Licensee agrees to make every reasonable effort to safeguard its account and password against unauthorized use, and to notify Virtuoso immediately of unauthorized use. Virtuoso and/or its assigned third-party account provider reserves the right to refuse service, terminate accounts, remove or edit content, or cancel logins in its sole and absolute discretion.
    2. Licensee agrees to accept full responsibility for all activities that occur under Licensee’s account. Licensee is solely responsible for maintaining the confidentiality of its account password and for restricting access to its computer, and Licensee agrees to accept responsibility for all activities that occur under its account. If Licensee has reason to believe that its account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of an account ID or password), Licensee will immediately notify Virtuoso. Licensee may be liable for the losses incurred by Licensee or others due to any unauthorized use of its account.
  4. NEW VERSIONS AND SUPPORT

      During the Term of this Agreement, Licensee may, at Virtuoso’s election, be allowed to access future versions of the Software, Library and/or Site, but Virtuoso has no obligation to make new versions available or to continue to make the current versions available in the future. Any and all such versions which may be made available by Virtuoso are subject to the terms and conditions of this Agreement. Virtuoso also has no obligation under this Agreement to provide ongoing support of any kind for the Software, Library and/or Site.

  5. RESTRICTIONS

    1. Licensee agrees that it will not assign, sublicense, transfer, pledge, lease, rent, loan, or share its rights under this Agreement.
    2. Licensee agrees that it will not use the Software to develop a Host Application or host components which simulate or virtualize embedded systems without the use of a Virtuoso™ Embedded Target Developer Toolkit or other Virtuoso™ Embedded Target hosting toolkit offered by Virtuoso, or which have a primary purpose of providing the core capabilities of the Virtuoso™ Embedded Target Developer Toolkit without a corresponding Virtuoso™ Embedded Target Developer Toolkit license, or which negatively affects the revenue generation from licensing the Virtuoso™ Embedded Target Developer Toolkit as determined solely by Virtuoso. Licensee also agrees not to use Host Applications or host components developed by others which generically simulate or virtualize embedded systems without the use of a Virtuoso™ Embedded Target Developer Toolkit as described above. In short, if you are using the Core Framework to virtualize an embedded system, it must be with the Virtuoso™ Embedded Target Developer Toolkit, and you cannot develop, share or sell components which provide the core functions of the Virtuoso™ Embedded Target Developer Toolkit. You may, however, develop, share and sell peripheral virtualization components which interoperate with the Virtuoso™ Embedded Target, for example to simulate peripherals of embedded systems.
    3. Licensee is restricted from distributing applications, assemblies, or software which then locally performs build operations incorporating the Core Framework on the user’s machine, in order to circumvent Host Application deployment restrictions, licensing requirements, or royalty requirements. Licensee is restricted from distributing applications, assemblies or software with the purpose of allowing the user to easily incorporate the Core Framework separately in order to circumvent Host Application deployment restrictions, licensing requirements, or royalty requirements.
    4. Licensee shall not (i) modify, translate, reverse engineer, disassemble or decompile the Software; (ii) create or attempt to create any derivative works of the Software or Documentation not permitted by a Host Application deployment; or, (iii) permit or assist others in performing any of the foregoing.
    5. Licensee agrees that the rights granted to Licensee under this Agreement are voided in the case of Licensee’s violation of the Agreement.
    6. Licensee shall limit access to and use of the Software to a single Designated User who has been selected by Licensee. Use by any other person is not permitted without separate authorization from Virtuoso.
    7. Apart from installation of the Software pursuant to the license granted by this Agreement, Licensee is prohibited from making copies of or distributing the Software, except that it is permitted to make a copy of any locally executed Software as part of a regularly scheduled incremental or full backup procedure. Licensee may make copies of the Documentation as is reasonably necessary to fulfill the aims of this Agreement. Licensee may distribute Core Framework runtime component dependencies with a Host Application deployment as part of the normal distribution of the Host Application.
    8. Licensee may not use the Software, Library or Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site.
    9. Licensee may not utilize Virtuoso’s Intellectual Property in any manner inconsistent with this Agreement, including but not limited to not using or displaying the Virtuoso or Virtuoso trademarks in any manner without Virtuoso’s prior written consent.
  6. ROYALITIES

    If you deploy a Host Application using the Core Framework, you agree to pay Virtuoso a royalty equal to 5% of all worldwide gross revenue actually attributable to the Host Application, regardless of whether that revenue is received by you or any other person or legal entity, as follows.

    1. Gross revenue resulting from any and all sales of a Host Application to end users through any and all media, including but not limited to digital and retail;
    2. Gross Revenue from Host Application access or in-Host Application advertising and affiliate programs;
    3. Gross Revenue in any other form actually attributable to a Host Application (unless excluded below).

    However, no royalty is owed on the following forms of revenue:

    1. The first $1,000.00 in gross revenue for each Host Application per calendar quarter;
    2. Consulting fees or work-for-hire fees which are non-recoupable for services performed using the Host Application or Core Framework;
    3. Revenue from a Virtuoso Host Plugin, Virtuoso Host Component, Virtuoso Example Project, or Virtuoso related templates or assets which are only sold to other Virtuoso users through the Montage Marketplace;
    4. Revenue from the sale of embedded systems with embedded software that was developed in conjunction with the Core Framework;

    The royalty is based on gross revenue from end users, regardless of whether you sell your Host Application to end users directly or self-publish via the Montage Marketplace or any similar store. The following simplified example illustrates the application of the royalty to gross sales: if your Host Application earns $10 on the Montage Marketplace, Montage may pay you $8 (having deducted 20% as a distribution fee), but your royalty to Virtuoso would still be 5% of $10 (or $0.50).

    Royalties must be reported and paid on a per-Host Application basis. The $1,000 per Host Application per calendar quarter royalty exemption may not be aggregated across multiple Host Applications.

    Within 45 days after the end of each calendar quarter in which a Host Application earns revenue outside of the above-listed royalty exclusions, you must pay to Virtuoso the full amount of the royalty due for that quarter and send Virtuoso a royalty report on a per Host Application basis. Detailed information on royalty reporting and payment can be found at https://www.virtuoso-software.com/royaltyreport.

  7. PRIVACY POLICY AND PUBLICITY

    1. When the Site user account is created as a prerequisite to using the Software and the Site, certain personal information may be required which will be stored and retained by Virtuoso or its designated third-party Site operator, such as Montage Software. Virtuoso uses the information provided for purposes such as responding to requests, improving the Software, helping Virtuoso serve its customers better, and communicating with Licensee.
    2. Virtuoso will not share personal information obtained from Licensee with any third party without Licensee’s prior permission, except in the event of a sale, merger or acquisition of the business, or in response to an order from a court of competent jurisdiction or in similar circumstances.
    3. Notwithstanding the above, Virtuoso shall be allowed to post or otherwise publish Licensee’s name, logo, and general information regarding Licensee’s use of Virtuoso for publicity and promotional purposes unless Licensee notifies Virtuoso in writing that it does not wish for the information to be made public.
  8. TERM

    1. Subject to receipt by Virtuoso of full payment of the required amounts, this Agreement will commence upon the Effective Date and shall continue for the Term unless earlier terminated.
    2. This Agreement can be renewed for additional periods by mutual consent of the parties as evidenced by written notice (to include electronic communication of same).
  9. WAIVER OF CLASS ACTION

    To the fullest extent allowed by law, Licensee waives any rights to trial by jury and agrees not to bring or participate in a class action, private attorney general action or any other similar litigation.

  10. GOVERNING LAW AND DISPUTE RESOLUTION

    This agreement will be governed by and construed in accordance with the laws of the State of Oklahoma, U.S.A. without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply to this Agreement.

    Licensee agrees that: (1) any claim, dispute, or controversy Licensee may have against Virtuoso or its third party account management service provider arising out of, relating to, or connected in any way with this Agreement, Software, Library or Site, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held in Tulsa, Oklahoma or at such other location as may be mutually agreed upon by Licensee and Virtuoso; (3) the arbitrator shall apply Oklahoma law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the Licensee’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that the Licensee is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Virtuoso may elect to pay as much of the Licensee’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, Licensee shall not be entitled to arbitrate its dispute. For more information on AAA and its Rules and Procedures, Licensee may visit the AAA website.

    To the extent that the arbitration provisions of this Agreement do not apply, this Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving Tulsa County, Oklahoma, U.S.A., and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing herein shall in any way prohibit or limit Virtuoso from instituting an action in any court of competent jurisdiction to obtain injunctive relief or to protect or enforce its intellectual property rights.

  11. INDEMNIFICATION/RELEASE

    Licensee agree to indemnify and hold harmless Virtuoso, and its parent, subsidiaries, affiliates, suppliers, account management service providers, distributors, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) Licensee’s use or misuse of the Software, Library or Site or any other Virtuoso services; (ii) Licensee’s use of virtualized components or emulating embedded hardware; (iii) Licensee’s violation of these Terms; (iv) Licensee’s violation of the rights of any other person or entity, including claims that any of Licensee’s submissions infringes or violates any third party intellectual property rights; and (v) Licensee’s breach of the representations, warranties, and covenants herein. Virtuoso reserves the right, at Licensee’s expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify Virtuoso and Licensee agrees to cooperate with Virtuoso’s defense of such claims. Licensee agrees not to settle any matter without the prior written consent of Virtuoso. Each party will use reasonable efforts to notify the other of any such claim, action or proceeding upon becoming aware of it.

  12. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

    Licensee acknowledges that there are risks inherent in the use of the Software, Library, Site, Documentation, any associated hardware and internet connectivity that may result in interruptions or errors, loss of privacy, confidentiality, information or property, as well as other losses, damages or adverse occurrences, regardless of the measures taken to avoid such occurrences. Further, Licensee acknowledges that virtual applications or components developed or tested utilizing the Software, Library or Site are not guaranteed or warranted to operate in the same manner as when run on a different platform.

    The Software, Library, Site, Documentation, and any other materials, services, or support provided to Licensee by Virtuoso pursuant to this Agreement are provided on an “as-is” basis and with all faults or errors. Virtuoso disclaims all warranties of any type or kind, whether express or implied. Licensee acknowledges that occasional internet connection may be required for license verification, and that occasional maintenance-related or unforeseen outages of license verification may occur.

    VIRTUOSO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT PURSUANT TO THE UNIFORM COMMERCIAL CODE AND ANY OTHER APPLICABLE LAW.

    In no event will Virtuoso be liable for any losses or damages incurred by Licensee, whether direct, indirect, incidental, special, exemplary or consequential, including lost or anticipated profits, savings, interruption to business, loss of business opportunities, loss of business information, the cost of recovering such lost information, the cost of substitute intellectual property or any other pecuniary loss arising from the use of, or the inability to use, the Software, Library or Site regardless of whether Licensee has advised Virtuoso of the possibility of such damages. Virtuoso’s aggregate liability in respect of any and all claims will be limited to the license fees paid by Licensee to Virtuoso pursuant to this Agreement. The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract, including fundamental breach or breach of a fundamental term.

  13. FORCE MAJEURE

    Virtuoso shall not be responsible for any delays, failures or outages arising out of causes beyond its reasonable control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, earthquakes, electrical outages, computer or communications failures, severe weather, and acts or omissions of subcontractors or third parties.

  14. SEVERABILITY

    If, after the date hereof, any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.