KYNETICS SOFTWARE LICENSE AGREEMENT
Please read the following Kynetics Software License Agreement (“Agreement”) completely. By downloading the software described in this agreement, you indicate that you accept the terms contained within. This is a legal agreement between you, as an authorized representative of your employer (together “you”), and Kynetics, LLC. (“Kynetics”) and its Affiliates. It concerns your rights to use the Kynetics customized, Android userspace software provided to you in binary form and any accompanying written materials (the “Licensed Software”). In consideration for Kynetics allowing you to access the Licensed Software, you are agreeing to be bound by the terms of this Agreement. If you do not agree to all of the terms of this Agreement, do not download the Licensed Software. If at any point you no longer agree to all the terms of this Agreement, stop using the Licensed Software immediately and delete all copies of the Licensed Software in your possession or control. Any copies of the Licensed Software that you have already distributed, where permitted, and that have not been destroyed, will continue to be governed by this Agreement. Your prior use of the Licensed Software will also continue to be governed by this Agreement.
Section 1. Definitions
1.1 “Affiliate” means, any corporation, or entity directly or indirectly controlled by, controlling, or under common control with Kynetics.
1.2 “Authorized System” means the hardware system(s) or software program(s) marketed by you which contain any of the products listed in Appendix B, (“TECHNEXION Product”), supplied directly or indirectly from TECHNEXION (“Authorized System”), and exclusively for use with or integrated within a TECHNEXION Product pursuant to this Agreement and with which the Licensed Software was originally intended.
1.3 “Intellectual Property Rights” means any and all rights under statute, common law or equity in and under copyrights, trade secrets, and patents (including utility models), and analogous rights throughout the world, including any applications for and the right to apply for, any of the foregoing.
1.4 “Licensed Software” means the software and the associated documentation for the target Authorized System for which the software was originally intended.
1.5 “Agreement” means this document and the following Appendices which are attached hereto and included herein by reference: Appendix A : Other License Grants and Rights.
Section 2. Licenses
2.1 Separate license grants and rights to Third Party Software, if different from those granted in this Section 2, are as identified on Appendix A.
2.2 For Kynetics Licensed Software provided to you in binary form (not human readable), Kynetics grants you a personal (non-commercial), non-transferable, non-exclusive, non-sublicensable, license, under Kynetics’ Intellectual Property Rights:
(a) to demonstrate the Licensed Software in object code (machine readable) only as part of, or embedded within, Authorized Systems and not on a stand alone basis.
2.3 The Licensed Software is licensed to you, not sold. Title to Licensed Software delivered hereunder remains vested in Kynetics or Kynetics’ licensor and cannot be assigned or transferred. You are expressly forbidden from selling or otherwise distributing the Licensed Software, or any portion thereof, except as expressly permitted herein. This Agreement does not grant to you any implied rights under any Kynetics or third party intellectual property.
2.4 You may not translate, reverse engineer, decompile, or disassemble the Licensed Software except to the extent applicable law specifically prohibits such restriction.
2.5 You grant to Kynetics a non-exclusive, non-transferable, irrevocable, perpetual, worldwide, royalty-free, sub-licensable license under your Intellectual Property Rights to use without restriction and for any purpose any suggestion, comment or other feedback related to the Licensed Software (including, but not limited to, error corrections and bug fixes).
Section 3. Term and Termination
3.1 This Agreement will remain in effect unless terminated as provided herein.
3.2 You may terminate this Agreement immediately upon written notice to Kynetics at the address provided below.
3.3 Either party may terminate this Agreement if the other party is in default of any of the terms and conditions of this Agreement, and termination is effective if the defaulting party fails to correct such default within 30 days after written notice thereof by the non-defaulting party to the defaulting party at the address below.
3.4 Notwithstanding the foregoing, Kynetics may terminate this Agreement immediately upon written notice if you:
(a) breach any of your confidentiality obligations or the license restrictions under this Agreement;
(b) become bankrupt or insolvent, or file a petition therefore;
(c) make an assignment for the benefit of its creditors;
(d) enter proceedings for winding up or dissolution;
(e) are dissolved; or
(f) are nationalized or is subject to the expropriation of all or substantially all of its business or assets.
3.5 Upon termination of this Agreement, all licenses granted under Section 2 will expire.
3.6 After termination of this Agreement by either party and upon Kynetics’ written request, you will, at your discretion, return to the Kynetics any confidential information including any and all copies thereof or furnish to Kynetics at the address below, a statement certifying, with respect to the Licensed Software delivered hereunder that the original and all copies, except for archival copies to be used solely for dispute resolution purposes, in whole or in part, in any form, of the Licensed Software have been destroyed.
3.7 Notwithstanding the termination of this Agreement for any reason, the terms of Sections 1, 2.3-2.5, 3.6, 3.7, 5 and 6 will survive.
Section 4. Warranty
4.1 Kynetics does not warrant that the functions contained in the Licensed Software will meet your requirements or that the operation of the Licensed Software will be uninterrupted or error free.
4.2 The warranty recited in this Section 4 extends only to you.
4.3 To the maximum extent permitted by law, Kynetics expressly disclaims any warranty for the Licensed Software. The Licensed Software is provided “AS IS”, without warranty of any kind, either express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. You assume the entire risk arising out of the use or performance of the Licensed Software.
Section 5. Indemnification
5.1 You agree to fully defend, indemnify and hold harmless Kynetics from any and all damages claims, liabilities, and costs (including reasonable attorney’s fees) related to your use of the Licensed Software and/or (2) your violation of the terms and conditions of this Agreement.
You are excused from this obligation to the extent any such claim arises solely from the Licensed Software as provided by Kynetics.
Section 6. General Provisions
6.1 Amendments and Waivers. No amendment of any provision of this Agreement will be valid unless stated in writing and signed by authorized representatives of each of the parties. No waiver by any party of any default, misrepresentation or covenant herein, whether intentional or not, will be deemed to extend any prior or subsequent default, misrepresentation, or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence.
6.2 Choice of Law. This Agreement will be governed by, construed, and enforced in accordance with the laws of the State of California.
6.3 Confidential Information. You will treat the Licensed Software as confidential information and you agree to retain the Licensed Software in confidence for a period of seven (7) years from the date of termination of this Agreement, with respect to all other parts of the Licensed Software.
6.4 Counterparts. This Agreement may be executed in one or more original counterparts, all of which together will constitute one agreement, and facsimile signatures will have the same effect as original signatures.
6.5 Entire Agreement. This Agreement, including its attachments and/or appendices, constitutes the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior communications, negotiations, understandings, agreements or representations, either written or oral, by or among the parties regarding such subject matter.
6.6 Limitation of Liability. EXCLUDING LIABILITY FOR A BREACH OF SECTION 6.3 (CONFIDENTIALITY), BREACHES OF THE LICENSE GRANTS IN SECTION 2, OR CLAIMS UNDER SECTION 5, IN NO EVENT WILL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, OR LOST PROFITS, SAVINGS, OR REVENUES, TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. KYNETICS’ TOTAL LIABILITY FOR ANY AND ALL COSTS, DAMAGES, CLAIMS, OR LOSSES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR PRODUCT(S) SUPPLIED UNDER THIS AGREEMENT IS LIMITED TO THE AGGREGATE AMOUNT PAID BY YOU TO KYNETICS IN CONNECTION WITH THE LICENSED SOFTWARE TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
6.7 Notices. All notices and communications under this Agreement will be made in writing, and will be effective when received at the following addresses:
2040 Martin Ave
Santa Clara, CA 95050
ATTN: Legal department
You: Please provide your legal department address to: email@example.com.
Either party may change its notice information upon notice to the other party.
6.8 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement will be construed to create any partnership, joint venture, or similar relationship. Neither party is authorized to bind the other to any obligations with third parties.
6.9 Severability. If any provision of this Agreement is held for any reason to be invalid or unenforceable the remaining provisions of this Agreement will be unimpaired and, unless a modification or replacement of the invalid or unenforceable provision is further held to deprive a party of a material benefit, in which case the Agreement will immediately terminate, the invalid or unenforceable provision will be replaced with a provision that is valid and enforceable and that comes closest to the parties’ intention underlying the invalid or unenforceable provision.
6.10 Succession and Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Neither party may assign this Agreement, or any part of this Agreement, without the prior written approval of the other party, which approval will not be unreasonably withheld or delayed.
6.11 Unauthorized Use.
(a) The Licensed Software is not intended or authorized for use in anti-personnel landmines, and you agree that it will not be used for this purpose. Upon request from Kynetics, you will furnish a written certification that you do not use or permit the use of the Licensed Software in anti-personnel landmines.
(b) The Licensed Software is not intended or authorized for use in weapons or systems whose primary purpose is the manufacture of weapons, and you agree that it will not be used for this purpose. Upon request from Kynetics, you will furnish a written certification that you do not use or permit the use of the Licensed Software in weapons or weapons manufacturing systems.
(c) The Licensed Software is not intended or authorized for use in products surgically implanted into the body, for life support or for other products in which a product failure could cause personal injury or death. If you permit the uses of Licensed Software for these unintended or unauthorized uses, you will fully indemnify, defend, and hold harmless Kynetics, its Affiliates, subsidiaries, officers and directors, employees, and distributors from all liability related to such use, including attorneys’ fees and costs.
Other License Grants and Rights:
The Licensed Software may include some or all of the following software which is not Kynetics proprietary software and the rights granted herein are limited to those rights provided below:
Open Source Software.
Open source software is not licensed under the terms of this Agreement, but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the GNU Lesser General Public License. Your use of the open source software is subject to the terms of each applicable license.
You must agree to the terms of each such applicable license, or you should not use the open source software.
Third Party Software and Restrictions.
Amphion Semiconductor Ltd.
Distribution of Amphion software must be a part of, or embedded within, Authorized Systems that include an Amphion Video Decoder.
Use of Atheros software is limited to evaluation and demonstration only. Permitted distributions must be similarly limited. Further rights must be obtained directly from Atheros.
Distribution of ATI software must be a part of, or embedded within, Authorized Systems that include a ATI graphics processor core.
Your use of Broadcom Corporation software is restricted to Authorized Systems that incorporate a compatible integrated circuit device manufactured or sold by Broadcom.
Use of Cirque Corporation technology is limited to evaluation, demonstration, or certification testing only. Permitted distributions must be similarly limited. Further rights, including but not limited to ANY commercial distribution rights, must be obtained directly from Cirque Corporation.
Coding Technologies (Dolby Labs)
Use of CTS software is limited to evaluation and demonstration only. Permitted distributions must be similarly limited. Further rights must be obtained from Dolby Laboratories.
Use of Cambridge Silicon Radio, Inc. (“CSR”) software is limited to evaluation and demonstration only. Permitted distributions must be similarly limited. Further rights must be obtained directly from CSR.
Future Technology Devices International Ltd.
Future Technology Devices International software must be used consistent with the terms found here:
Global Locate (Broadcom Corporation)
Use of Global Locate, Inc. software is limited to evaluation and demonstration only. Permitted distributions must be similarly limited. Further rights must be obtained from Global Locate.
LineStream Technologies software must be used consistent with the terms found here:
uC/OS-II and uC/OS-III is provided in source form for FREE short-term evaluation, for educational use or for peaceful research. If you plan or intend to use uC/OS-II or uC/OS-III in a commercial application/product then, you need to contact Micrium to properly license uC/OS-II or uC/OSIII for its use in your application/product. We provide ALL the source code for your convenience and to help you experience uC/OS-II or uC/OSIII. The fact that the source is provided does NOT mean that you can use it commercially without paying a licensing fee.
Notwithstanding the terms contained in Section 2.3 (a), if the Licensed Software includes proprietary software of MindTree in source code format, Licensee may make modifications and create derivative works only to the extent necessary for debugging of the Licensed Software.
Use of MPEG LA audio or video codec technology is limited to evaluation and demonstration only. Permitted distributions must be similarly limited. Further rights must be obtained directly from MPEG LA.
Use of Opus software must be consistent with the terms of the Opus license which can be found at: http://www.opus-codec.org/license/
Oracle JRE (Java)
The Oracle JRE must be used consistent with terms found here: http://java.com/license
P&E Software must be used consistent with the terms found here:
Qualcomm Atheros, Inc.
Notwithstanding anything in this Agreement, Qualcomm Atheros, Inc. Wi-Fi software must be used strictly in accordance with the Qualcomm Atheros, Inc. Technology License Agreement that accompanies such software. Any other use is expressly prohibited.
Real Networks – its
GStreamer Optimized Real Format Client Code implementation or OpenMax Optimized
Real Format Client Code
Use of the GStreamer Optimized Real Format Client Code, or OpenMaxOptimized Real Format Client code is restricted to applications in the automotive market. Licensee must be a final manufacturer in good standing with a current license with Real Networks for the commercial use and distribution of products containing the GStreamer Optimized Real Format Client Code implementation or OpenMax Optimized Real Format Client Code.
The following table lists Authorized Systems which are permitted to use the Licensed Software under this EULA:
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