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ItemSense Software Commercial Agreement

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1. DEFINITIONS
1.1 “Authorized Users” means Customer’s current employees and individual independent contractors.
1.2 “Compatible Reader” means any RFID reader identified as a “Compatible Reader” on the Resource Requirements page accessible on the Impinj Developer Portal (http://developer.impinj.com/itemsense/docs/requirements-for-an-impinj-itemsense-installation), as revised from time to time.
1.3 “Customer Application” means a software application developed by or for Customer that interfaces with ItemSense via the ItemSense API.
1.4 "Documentation" means Impinj documentation relating to ItemSense and accessible on the Impinj Support Portal (https://support.impinj.com) or the Impinj Developer Portal (http://developer.impinj.com), each as revised from time to time.
1.5 "ItemSense" means the Impinj software product currently known as “ItemSense”, including ItemSense API and ItemSense Management Console. The defined term “ItemSense” as used in this Agreement does not refer to Customer Applications or any Third-Party Software that may be included with ItemSense.
1.6 “ItemSense API” means the ItemSense application programming interface.
1.7 “ItemSense Management Console” means the ItemSense reader management interface.
1.8 “Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of ItemSense that is not expressly authorized under this Agreement.
1.9 "Technical Support Services" means technical support services relating to ItemSense described in Section 4.3 and Exhibit B.
1.10 “Third-Party Software” means open source or other third-party software that is covered by separate license terms.

2. USE OF ITEMSENSE
2.1 ItemSense. Subject to the terms and conditions of this Agreement, Impinj grants to Customer a limited, worldwide, non-exclusive, non-sublicenseable, non-transferable (except as permitted in Section 11.2), license during the term of this Agreement for its Authorized Users to install, and use the licensed instances of ItemSense specified in Exhibit A (“Licensed Instances”) solely to: (a) interact with the number of Compatible Readers specified in Exhibit A (“Licensed Readers”); and (b) develop, test, and operate Customer Applications.
2.2 Third-Party Software. ItemSense may contain Third-Party Software. Information concerning the inclusion of Third-Party Software, if any, and the notices, license terms, and disclaimers applicable to that Third-Party Software are available via the ItemSense Management Console. Impinj’s license and obligations under this Agreement do not apply to any Third-Party Software identified via the ItemSense Management Console. Customer’s use of any Third-Party Software is subject to the applicable license terms and this Agreement does not alter any rights or obligations under those license terms.
2.3 Automated Features. ItemSense collects information essential to its operation, including the number of readers that ItemSense manages and the Customer Applications with which ItemSense operates or interacts, and stores that information within ItemSense (“Automated Features”). Customer will not interfere with the Automated Features, or delete any information gathered by the Automated Features. The Automated Features do not automatically report any such information to Impinj.
2.4 Open-Source Restriction. Customer is not authorized to subject any portion of ItemSense to the terms of any open-source license, including a license that requires, as a condition of use, modification, or distribution of software subject to such license, that such software or other software combined or distributed with such software: (a) be disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge. For the avoidance of doubt, this restriction does not apply to any Third-Party Software, which is subject to distinct license terms.
2.5 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of ItemSense; (b) rent, lease, or sublicense ItemSense, except with Impinj’s advance written approval; (c) provide, divulge, disclose, make available to, or permit the use of ItemSense by any third party, except with Impinj’s advance written approval; (d) circumvent or disable any technological or security features or measures in ItemSense; (e) use or implement ItemSense API in any product or service that competes with ItemSense; (f) connect with additional Compatible Readers not covered under the current subscription payment; or (g) cause or permit any third party to do any of the above.
2.6 Suggestions. If Customer provides any suggestions to Impinj concerning the functionality and performance of ItemSense (including identifying potential errors and improvements), Customer hereby assigns to Impinj all right, title, and interest in and to the suggestions, and Impinj is free to use the suggestions without payment or restriction.
2.7 Reservation of Rights. ItemSense is made available to Customer on a time-limited, subscription basis and is not sold by Impinj to Customer, and nothing in this Agreement will be interpreted or construed as a sale or purchase of ItemSense. Customer will not have any rights in or to ItemSense except as expressly granted in this Agreement. Impinj reserves to itself all rights to ItemSense not expressly granted to Customer in accordance with this Agreement. Impinj retains all intellectual property rights in and to ItemSense. Customer acknowledges that ItemSense and any know-how and trade secrets related to ItemSense are the sole and exclusive property of Impinj and contain Impinj’s confidential and proprietary materials. Customer hereby irrevocably assigns Impinj all right, title, and interest in and to all authorized and unauthorized derivative works of ItemSense created by Customer, except for Customer Applications developed for use with ItemSense.

3. CUSTOMER OBLIGATIONS
3.1 Documentation. Customer will operate ItemSense in compliance with the Documentation.
3.2 Proprietary Rights Notices. Customer will neither alter nor remove any copyright notice or other proprietary-rights notices that may appear in ItemSense.
3.3 Compliance with Laws. Customer will use ItemSense and Customer Applications in compliance with all applicable laws and regulations, and will not engage in unethical or other conduct that may damage Impinj’s reputation.
3.4 Export. ItemSense and Customer Applications may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re export, or import ItemSense and Customer Applications.
3.5 Government Restricted Rights. ItemSense and the Documentation are "Commercial Items", as defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users only as Commercial Items. Any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement. Any technical data provided that is not covered by the above provisions shall be deemed “technical data-commercial items” pursuant to 48 C.F.R. §252.227-7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by 48 C.F.R. §252.227.7015(b)
3.6 Protection against Unauthorized Use. Customer acknowledges that ItemSense and any other materials Impinj furnishes to Customer contain Impinj’s valuable proprietary rights. Customer will take appropriate steps and precautions to protect ItemSense and these other materials. Without limiting the generality of the foregoing, Customer will use its best efforts to prevent any Unauthorized Use and immediately notify Impinj in writing of any Unauthorized Use that comes to Customer’s attention. Customer will take all steps reasonably necessary to stop Unauthorized Use by anyone who obtained access to ItemSense directly or indirectly through Customer or any of its employees, agents, representatives, or contractors,. Customer will provide to Impinj all cooperation and assistance necessary to stop the Unauthorized Use as Impinj may reasonably request.

4. IMPINJ SERVICES
4.1 Delivery. Impinj has made, or will make within a reasonable time after the Effective Date, ItemSense available to the Customer for electronic download or on physical media.
4.2 Deployment and Operation. Customer is responsible for deploying and operating ItemSense (i.e., installation, setup, configuration, testing, Customer Application development, etc.) unless Customer has contracted to have Impinj or an Impinj-authorized service provider perform deployment or operation services in accordance with the terms of Impinj’s standard services agreement.
4.3 Technical Support Services. For so long as Customer is current with its payment of the fees specified in Exhibit A, Impinj will provide the Technical Support Services specified in Exhibit B.
4.4 Software Updates. Impinj shall make available to Customer any Updates as released by Impinj from time to time at its discretion during the term of this Agreement. Customer acknowledges that Updates are authorized to be used only with ItemSense. Installation or use of any Updates on any other product shall be a material breach by Customer and cause for termination of the Agreement. Any Updates shall be deemed included as part of ItemSense and all access and use of Updates shall be subject to the same license terms as for ItemSense, unless a separate EULA is provided by Impinj with any such Update, in which case, the license terms for the Update shall be under the terms of the separate EULA. “Update” means a set of related or unrelated software improvements, bug fixes, and error corrections applicable to ItemSense that is designated by Impinj as an “Update” for ItemSense. An Update does not include maintenance of any Customer Application or Third-Party Software that may be contained in ItemSense or hosted on hardware interfacing with ItemSense. Impinj reserves the right to price and sell any additional ItemSense functions or improvements as a separate product.

5. FEES AND PAYMENT
5.1 Fees and Payment Terms
(a) Customer will pay Impinj the fees specified in Exhibit A and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes. Unless otherwise specified in Exhibit A, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Fees are nonrefundable.
(b) Customer will notify Impinj before operating additional ItemSense instances or connecting additional Compatible Readers to ItemSense in excess of the number of licensed ItemSense instances and Compatible Readers set forth on Exhibit A. Impinj will invoice Customer for the additional ItemSense instances and Compatible Readers as specified by the fee structure in Exhibit A.
(c) Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Impinj to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
5.2 Taxes. Other than federal and state net income taxes imposed on Impinj by the United States, Customer will bear all taxes, duties, and other governmental charges resulting from this Agreement. Customer will pay these additional taxes as necessary to ensure that the net amounts received by Impinj after all such taxes are paid are equal to the amounts that Impinj would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5.3 Audit. During the term of this Agreement and for three years after, Customer will keep current, complete, and accurate records regarding the reproduction, distribution, and use of ItemSense. Customer will provide such information to Impinj and certify that it has paid all fees required under this Agreement within five business days of any written request, so long as no more than two requests are made each year. Customer will, after reasonable prior notice from Impinj, provide Impinj reasonable access to Customer’s premises, records, and personnel so that Impinj may audit and confirm that Customer complies with this Agreement. If an audit reveals any Unauthorized Use, Customer will promptly comply with this Agreement and make a payment of any additional fees owed as contemplated by this Agreement and specified in Exhibit A, plus interest at the rate specified in Section 5.12. If the amount of any underpayment is five percent of the amount due or greater, Customer will promptly reimburse Impinj for its reasonable costs of conducting such audit.

6. TERM AND TERMINATION
6.1 Term. This Agreement will commence upon the Effective Date and continue for the term specified in Exhibit A unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
6.2 Termination for Nonpayment. Impinj may, without limitation to any of its other rights or remedies, terminate this Agreement immediately if Customer fails to timely pay any fees specified in Exhibit A or any other amounts owing under this Agreement.
6.3 Termination for Material Breach. Without limiting Section 6.2, either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party.
6.4 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) Customer will pay to Impinj any fees and other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) Customer will provide Impinj with a written certification signed by an authorized representative certifying that Customer has destroyed all copies of ItemSense and that all use of ItemSense by Customer has been discontinued.

7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, IMPINJ MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IMPINJ EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. IMPINJ EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CUSTOMER’S USE OF ITEMSENSE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION, WARRANTY OR INDEMNITY ON BEHALF OF IMPINJ TO ANY THIRD PARTY.

8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Infringement Defense. Impinj will defend Customer from any actual or threatened third party claim that an ItemSense infringes or misappropriates any copyright or trade secret of any third party during the term of this Agreement if: (a) the applicable Customer Indemnified Party gives Impinj prompt written notice of the claim; (b) Impinj has full and complete control over the defense and settlement of the claim; (c) the applicable Customer Indemnified Party provides assistance in connection with the defense and settlement of the claim as Impinj may reasonably request; and (d) the applicable Customer Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
8.2 Infringement Indemnification. Impinj will indemnify Customer against: (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Impinj’s consent after Impinj has accepted defense of such claim); and (c) all amounts that Impinj agrees to pay a third party to settle any proceeding arising under Section 8.1.
8.3 Mitigation. If ItemSense becomes, or in Impinj’s reasonable judgment is likely to become, the subject of an infringement claim, Impinj may, at its option, (a) procure for Customer the right to continue using ItemSense, (b) provide an Update to ItemSense so that Customer may continue using ItemSense without infringing, or (c) terminate this Agreement.
8.4 Exclusions. Impinj will have no obligation under this Section 8 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of ItemSense in a manner not specified in the Documentation if such infringement would have been avoided but for such combination, operation, or use; (b) Customer’s failure to use the latest release or update of ItemSense or to comply with instructions provided by Impinj, if the alleged infringement would not have occurred but for such failure; (c) any modification of ItemSense not made or authorized by Impinj where such infringement would not have occurred absent such modification; (d) Unauthorized Use of ItemSense; (e) any Customer Application or the combination of any Customer Application with ItemSense if such infringement would have been avoided but for such combination; or (f) Third-Party Software. Customer will reimburse Impinj for any costs or damages that result from these actions.
8.5 Exclusive Remedy. This Section 8 states Impinj’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by ItemSense or any other materials or technology provided or made available by Impinj hereunder.

9. CUSTOMER INDEMNIFICATION
9.1 Defense. Customer will defend Impinj from any actual or threatened third party claim arising out of or based upon any Customer Application or the combination of any Customer Application with ItemSense if the claim would have been avoided but for such combination, Customer’s or any Authorized User’s use of ItemSense, or Customer's breach of any of the provisions of this Agreement. Impinj will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request and at Customer’s expense; and (d) comply with any settlement or court order made in connection with the claim.
9.2 Indemnification. Customer will indemnify Impinj against: (a) all damages, costs, and attorneys’ fees finally awarded against Impinj in any proceeding under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Impinj in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and (c) all amounts that Customer agrees to pay a third party to settle any proceeding arising under Section 9.1.

10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IMPINJ WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, OR LOST PROFITS, DATA OR DATA USE, OR LOSS OF BUSINESS, EVEN IF IMPINJ IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL IMPINJ’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO IMPINJ UNDER THIS AGREEMENT WITHIN 12 MONTHS BEFORE THE DATE THE CLAIM IS ASSERTED AGAINST IMPINJ.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY IMPINJ TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11. GENERAL
11.1 Relationship. Impinj will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
11.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law).
11.3 Subcontractors. Impinj may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Impinj remains responsible for all of its obligations under this Agreement. Customer is responsible for its Authorized Users’ compliance with the terms of this Agreement.
11.4 Nonsolicitation. During the term of this Agreement and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of an Impinj employee or independent contractor without the prior written consent of Impinj.
11.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.6 Force Majeure. Impinj will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Impinj’s reasonable control, so long as Impinj uses all commercially reasonable efforts to avoid or remove the cause of the non-performance.
11.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington, in connection with any action arising out of or in connection with this Agreement.
11.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future.
11.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of ItemSense under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use ItemSense will immediately terminate.
11.10 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement.
11.11 Confidentiality. All information exchanged between Impinj and Client pursuant to this Agreement will be subject to the obligations as to confidentiality under the nondisclosure or comparable agreement entered into between the parties.
11.12 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding the Customer’s use of ItemSense. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede the prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties for services relating to ItemSense that Impinj may provide. No employee, agent, or other representative of Impinj has any authority to bind Impinj with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Impinj will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Impinj specifically agrees to such provision in a writing signed by an authorized agent of Impinj.


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Impinj (NASDAQ: PI) wirelessly connects billions of everyday items such as apparel, medical supplies, and automobile parts to consumer and business applications such as inventory management, patient safety, and asset tracking. The Impinj platform uses RAIN RFID, delivering information about items to the digital world and enabling the Internet of Things.