Terms and Conditions

Development Platform Kit Click-Through License for Intrinsyc
 
LICENSE AND PURCHASE TERMS AND CONDITIONS
FOR
INTRINSYC DEVELOPMENT PLATFORM KITS
POWERED BY
SNAPDRAGON™ PROCESSORS

 

 

This is a legally binding agreement (“Agreement”) by and between Intrinsyc Software International, Inc. (“Intrinsyc”) and the person or legal entity you represent (“You” or “Your).

 

ATTENTION: SUBJECT TO PAYMENT OF THE APPLICABLE FEES, THE DEVELOPMENT PLATFORM SOFTWARE THAT IS PART OF THE Intrinsyc Development Platform KIT(s) PROVIDED UNDER THIS AGREEMENT IS LICENSED TO YOU AND NOT SOLD. SUBJECT TO PAYMENT OF THE APPLICABLE FEES, THE DEVELOPMENT PLATFORM HARDWARE THAT IS PART OF THE Intrinsyc Development Platform KIT(s) IS BEING SOLD TO YOU. THE OPEN SOURCE SOFTWARE THAT IS PART OF THE Intrinsyc Development Platform KIT(s) IS BEING DISTRIBUTED TO YOU BY INTRINSYC, AND SUBJECT TO THE APPLICABLE OPEN SOURCE LICENSE TERMS, THE OPEN SOURCE SOFTWARE IS BEING LICENSED TO YOU, AND NOT SOLD, BY THE APPLICABLE PROJECT OR DEVELOPER THAT CREATED SUCH OPEN SOURCE SOFTWARE. THE LICENSE PROVISIONS OF THIS AGREEMENT DEFINE WHAT YOU MAY DO WITH THE DEVELOPMENT PLATFORM SOFTWARE. OTHER PROVISIONS SPECIFY AND RESTRICT WHAT YOU MAY DO THE WITH THE DEVELOPMENT PLATFORM HARDWARE. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE Intrinsyc Development Platform Kit(s) AND ANY SUPPORT OR SERVICE(S) THAT INTRINSYC MAY PROVIDE TO YOU IN RESPECT TO THE Intrinsyc Development Platform Kit(s).

 

IMPORTANT: BEFORE COMPLETING THE ONLINE ORDER PROCESS FOR Intrinsyc Development Platform KIT(s), PLEASE CAREFULLY READ THIS AGREEMENT, WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE DEVELOPMENT PLATFORM SOFTWARE AND OPEN SOURCE SOFTWARE, AND THE TERMS UNDER WHICH YOU ARE PURCHASING THE DEVELOPMENT PLATFORM HARDWARE. BY CLICKING ON THE “YES” OR “I ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK ON THE “NO” OR “I DO NOT ACCEPT” BUTTON AND PLEASE DO NOT COMPLETE THE ONLINE ORDER PROCESS FOR THE Intrinsyc Development Platform KIT(s). IF YOU COMPLETE THE ONLINE ORDER PROCESS FOR THE Intrinsyc Development Platform KIT(s) YOU WILL NOT HAVE ANY RIGHT TO RETURN THE Intrinsyc Development Platform KIT(s) FOR A REFUND. INTRINSYC RESERVES THE RIGHT TO REJECT ANY ORDER OR PAYMENT FOR ANY REASON. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.

For the purposes of this Agreement:

 

“Affiliate” means, with respect to You, Intrinsyc or a Licensor (as defined below), as the case may be, any corporation or other entity that, at any time, directly or indirectly, Controls, is Controlled by or is under common Control with You, Intrinsyc or a Licensor, as the case may be (but only as long as such Control exists).  For the purpose of this definition, the term “Control” means (i) the beneficial ownership (whether direct or indirect) of more than fifty percent (50%) of the voting power of an entity or (ii) in the case of an entity that does not have outstanding voting shares or securities, the majority (i.e., more than fifty percent (50%)) of the equity interests in such entity that is now or hereafter owned or controlled by another entity, either directly or indirectly.

 “Authorized Trainer” means someone who has been approved in writing by Intrinsyc to provide training for educational and research purposes with regard to the Intrinsyc Development Platform Kit.

 “Development Platform Hardware” means a hardware development platform sold by Intrinsyc, based on one or more Snapdragon processors by Qualcomm Technologies, Inc. (“QTI”).

 “Development Platform Software” means collectively, or individually, as applicable: (i) any proprietary software or firmware of Intrinsyc or its Licensors, in object code form only, that is incorporated within the Development Platform Hardware made available upon acceptance of this Agreement, (ii) any Open Source Software that is incorporated within the Development Platform Hardware made available upon acceptance of this Agreement and (iii) any upgrades, updates, bug fixes or modified versions of such proprietary software or firmware, in object code form only, or Open Source Software provided to You by Intrinsyc from time to time (collectively, “Updates”).

 “Documentation” means any and all written or electronic documentation, including user manuals, reference materials, and/or installation manuals that Intrinsyc generally makes available to purchasers of the Development Platform Hardware and/or licensees of the Development Platform Software.

Intellectual Property Rights” or “IPR” means patents (including patent applications, reissues, divisions, continuations and extensions thereof, all sometimes individually and/or collectively referred to herein as “Patent(s)”), utility models, copyrights, trade secrets, mask work rights, and any other form of intellectual property right protection, excluding trademarks and service marks, afforded under the laws of the United States or any other jurisdiction or bi-lateral or multi-lateral international treaty regime.

 “Intrinsyc Development Platform Kit” means collectively (a) the Development Platform Hardware sold by Intrinsyc to You pursuant to this Agreement, (b) the Development Platform Software incorporated within said Development Platform Hardware, which is licensed by Intrinsyc to You pursuant to this Agreement and (c) any accompanying Documentation to said hardware and/or software, which is also licensed by Intrinsyc to You pursuant to this Agreement.

 “Licensor(s)” means any third party that licenses software to Intrinsyc for use in the Development Platform Software.

 “Open Source Software” means any software licensed under Open Source License Terms.

 “Open Source License Terms” means the licensing and/or distribution models commonly known as “open source software” or “free software” or any other licensing and/or distribution models pursuant to which software is made generally available to the public in source code form under terms that permit modification and redistribution of such software. By way of example only and without limitation, Open Source License Terms include any versions of the following agreements, licenses or distribution models: (1) the GNU General Public License (GPL); (2) Lesser/Library GPL (LGPL); (3) the Common Development and Distribution License (CDDL); (4) the Artistic License (including without limitation PERL); (5) the Netscape Public License; (6) the Sun Community Source License (SCSL) or the Sun Industry Standards License (SISL); (7) the Apache License; (8) the Common Public License; (9) the Affero GPL (AGPL); (10) the Berkeley Software Distribution (BSD); (11) the Mozilla Public License (MPL); and (12) any other licenses that are defined as OSI (Open Source Initiative) licenses as listed on the opensource.org website.

 “Purpose” means the use of an Intrinsyc Development Platform Kit to (a) design, develop, evaluate, test and/or demonstrate Your hardware and/or software applications for use in devices that incorporate one or more Snapdragon processors by QTI, and (b) in the case of where You are an Authorized Trainer only, train third parties solely for educational and research purposes.

 “Reciprocal Open Source Software” means Open Source Software licensed under Reciprocal Open Source License Terms.

 “Reciprocal Open Source License Terms” means terms in any license or agreement for software which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed or combined with such software (a “Work”), any of the following: (a) the making available of source code, object code, or design information regarding the Work; (b) the granting of permission for creating derivative works regarding the Work; or (c) the granting of a royalty-free license to anyone under Intellectual Property Rights in respect to the Work, including, without limitation the GPL and LGPL.

 

  1. Scope. These terms and conditions apply to Intrinsyc Development Platform Kit(s) that You receive from Intrinsyc after completing Intrinsyc’s online order process for the Intrinsyc Development Platform Kit(s). Any terms or conditions stated by You in any purchase order or otherwise that are different from, or in addition to, these terms and conditions shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Agreement. Intrinsyc expressly rejects additional or different terms.

 

  1. Sale of Intrinsyc Development Platform Kit(s).Subject to the terms and conditions of this Agreement, including payment of the applicable fees, Intrinsyc sells You the number of Intrinsyc Development Platform Kit(s) (excluding any Development Platform Software or Documentation included within such kits which licensed to You hereunder)that You have ordered and for which you have paid, for use by You solely for the Purpose. You shall not otherwise sell, license, transfer, distribute or in any other manner commercially exploit any part of the Intrinsyc Development Platform Kit(s). This Agreement does not grant You any rights to (a) distribute the Intrinsyc Development Platform Kit(s) or any components thereinexcept in the case whereby You are an Authorized Trainer or (b) commercialize products that incorporate Development Platform Hardware and/or Development Platform Software. If You wish to distribute and/or commercialize products that incorporate the Development Platform Hardware or Development Platform Software, then You must enter into a separate agreement with Intrinsyc in respect to such distribution rights. Intrinsyc shall be under no obligation to grant You any such distribution rights.

 

Software License. Subject to the terms and conditions of this Agreement (including, without limitation those terms, conditions and restrictions set forth in Sections 4 (Restrictions), 5 (Ownership) and 6 (Open Source Software) below) and payment of the applicable fees, Intrinsyc hereby grants to You (a) a non-exclusive limited, internal use only, copyright license to use the Development Platform Software solely for the Purpose and solely in conjunction with the Development Platform Hardware sold by Intrinsyc to You pursuant to this Agreement for the duration of the useful life of such Development Platform Hardware (unless this Agreement is terminated sooner as provided in this Agreement), and (b) a non-exclusive, limited, internal use only, copyright license to use the Documentation solely for the Purpose and solely in conjunction with the Development Platform Software licensed to You and the Development Platform Hardware sold by Intrinsyc to You pursuant to this Agreement for the duration of the useful

  1. life of such Development Platform Hardware (unless this Agreement is terminated sooner as provided in this Agreement). Neither this Agreement, nor any act by Intrinsyc or its Licensors or any of their respective Affiliates pursuant to this Agreement or relating to the Intrinsyc Development Platform Kit(s) shall provide to You any license or any other rights whatsoever under any Intellectual Property Rights of Intrinsyc or its Licensors or any of their respective Affiliates, except for the copyright rights expressly set forth in this Section 3. You understand and agree that: (i) neither this Agreement, nor the delivery of the Development Platform Software alone or in combination with a Development Platform Hardware, grants any right to practice, or any other right at all with respect to, any Patent of Intrinsyc and its Licensors or any of their respective Affiliates; and (ii) a separate license agreement from Intrinsyc and/or its Licensors, as the case may be, is needed to use or practice any Patent of Intrinsyc or its Licensors or any of their respective Affiliates. You agree not to contend in any context that, as a result of the provision or use of the Development Platform Software, either Intrinsyc or its Licensors or any of their respective Affiliates has any obligation to extend, or You or any other party has obtained any right to, any license, whether express or implied, with respect to any patent of Intrinsyc or its Licensors or any of their respective Affiliates for any purpose. Neither this Agreement nor the delivery of the Development Platform Software alone or in combination with a Development Platform Hardware modifies or abrogates Your obligations under any other agreement between You and Intrinsyc or its Licensors or any of their respective Affiliates.

 

  1. Restrictions. You agree not to, and will not encourage others to: (i) alter, modify, translate, or adapt any Development Platform Software or create any derivative works based thereon except in the case of any Open Source Software whereby the applicable Open Source License Terms shall apply; (ii) decompile, reverse engineer or disassemble any Development Platform Hardware or otherwise attempt to learn the source code, structure or algorithms underlying any of the Development Platform Software which is provided in object code form only; (iii) copy any Development Platform Hardware or Development Platform Software except as expressly permitted in this Agreement; (iv) assign, sublicense or otherwise transfer any Development Platform Hardware or Development Platform Software in whole or in part except as expressly permitted in this Agreement; (v) use the Development Platform Hardware and Development Platform Software except as expressly permitted in this Agreement; (vi) disclose any Development Platform Hardware or Development Platform Software to any third party except as expressly permitted in this Agreement; or (vii) rent, lease, lend, provide commercial hosting services or otherwise make the Development Platform Hardware and/or Development Platform Software available for value. In addition, You are not permitted to use any Development Platform Hardware or Development Platform Software in any device that (a) is capable, under any circumstance (including, without limitation, by software or firmware modifications), of initiating or receiving any CDMA or OFDMA based wireless wide area network communications including but not limited to such networks implementing IS-95, cdmaOne, cdma2000, EV-DO, W-CDMA, UMTS, HSPA, TD-SCDMA, LTE, WiMax and any updates or revisions thereto, or (b) implements wireless broadcast functionality in accordance with any wireless broadcast specifications ratified or adopted as a standard by any nationally or internationally recognized standards organization for development of or use in any wireless network. Failure to meet or maintain the requirements set forth in this Section 4 shall be a material breach of this Agreement and result in the immediate termination of this Agreement pursuant to Section 14 (Termination).

 

With regard to any related Documentation provided to You, You may reproduce a reasonable number of copies of such Documentation, and use such Documentation as permitted above in Section 3 (Software License) of this Agreement. Distribution of the Documentation is prohibited without the express written permission of Intrinsyc, which it can withhold, condition or delay in its sole discretion.

 

  1. Ownership. You acknowledge and agree that Intrinsyc and its Licensors shall retain all right, title, and interest in and to the Development Platform Software and any Updates and improvements thereof, including without limitation all copyrights, patent rights and trademark rights and all other Intellectual Property Rights therein, and You shall not remove any copyright notices or other legends from the Development Platform Hardware, Development Platform Software or any accompanying Documentation. Except for the limited copyright right granted to You under Section 3 (Software License) with respect to the use of the Development Platform Software in Development Platform Hardware, You further acknowledge and agree that Intrinsyc has no right to sublicense or otherwise grant any rights under any other Intellectual Property Rights of its Licensors or Affiliates of such Licensors, including, without limitation, any Patents of its Licensors or Affiliates of such Licensors.

 

  1. Open Source Software. The Development Platform Software may contain Open Source Software. The terms and conditions governing Your use of such Open Source Software shall be in accordance with the Open Source License Terms associated with such Open Source Software. You shall not make the portions of the Development Platform Software that are proprietary to Intrinsyc or its Licensors available pursuant to any Open Source License Terms. You shall not use, combine, modify, distribute, make the Development Platform Software a derivative work of or otherwise exploit the Development Platform Software in connection with any Reciprocal Open Source Software in any manner that would cause the Development Platform Software to become subject to any Reciprocal Open Source License Terms, and You shall restrict each of Your subcontractors and customers in the same manner.

 

Feedback. Intrinsyc may from time to time receive suggestions, feedback or other information from You concerning the Development Platform Hardware, Development Platform Software and/or Documentation. Any suggestions, feedback or other disclosures made by You are and shall be entirely voluntary on Your part. Notwithstanding any other term in this Agreement, Intrinsyc and its Licensors shall be free to use Your suggestions, feedback or other information in the further development of the Development Platform Hardware, Development Platform Software and/or Documentation, without obligation of any kind to You. You agree that all inventions, product improvements,and modifications to the Development Platform Hardware, Development Platform Software and Documentation conceived of or made by Intrinsyc and/or its Licensors that are based, either in whole or in part, on Your ideas, feedback, suggestions, or recommended improvements are the exclusive property of Intrinsyc and/or its Licensors, and all right, title and interest in and to any such inventions, product improvements, and modifications will vest solely in Intrinsyc and/or its Licensors, as the case may be.

8. Technical Support and Updates. Notwithstanding anything to the contrary hereunder, You acknowledge and agree that Intrinsyc and its Licensors (i) are under no obligation to provide any form of technical support for the Intrinsyc Development Platform Kit(s); and (ii) have no obligation to provide any Updates under this Agreement. If Intrinsyc chooses to provide any form of support or information relating to the Intrinsyc Development Platform Kit(s), such support and information shall be deemed confidential and proprietary to Intrinsyc and/or its Licensors, as the case may be, and shall be protected in accordance with Section 12 (Confidentiality). To the extent Intrinsyc makes available one or more Updates, Your use of such Updates shall be governed by the terms and conditions of this Agreement unless an end user license agreement is included within such Updates in which case Your use of such Updates shall be governed by the terms and conditions of such end user license agreement.

9. Training. To the extent You are an Authorized Trainer and solely with respect to You as an Authorized Trainer, You may loan Intrinsyc Development Platform Kit(s), which You have ordered from Intrinsyc, solely to the individuals that You are training provided that (a) each such individual has an agreement in place with You that imposes obligations on such individual substantially equal to those herein prior to Your distribution of such kit; (b) each such individual acknowledges and agrees in his/her agreement with You that he/she shall only use the Intrinsyc Development Platform Kit for his/her personal non-commercial and educational use; (c) each such individual is required to return the Intrinsyc Development Platform Kit to You at the end of such training session and (d) You shall remain directly liable to Intrinsyc and its Licensors for any misuse of the Intrinsyc Development Platform Kit, including but not limited to any Development Platform Software, by any such individual.

10. Price and Payment. The price for the Intrinsyc Development Platform Kit(s) shall be as set forth in the online order form for the Intrinsyc Development Platform Kit(s) and You shall pay for the Intrinsyc Development Platform Kit(s) in advance by credit card or other means as agreed by Intrinsyc in writing with You. You shall pay all applicable shipping charges and sales, valued added, use, withholding or similar taxes, import and export fees and duties, exclusive of Intrinsyc’s net income. If You are required by any law or regulation to make any deduction or withholding, on account of tax or otherwise, from any payment to Intrinsyc under this Agreement, You shall pay such additional amount to the invoiced amount as to ensure that Intrinsyc receives in cleared funds the total amount payable to it under this Agreement
11. Delivery. Intrinsyc shall deliver the Intrinsyc Development Platform Kit(s) to You upon payment via credit card to Intrinsyc or as otherwise agreed by Intrinsyc in writing. The Intrinsyc Development Platform Kit(s) will be shipped EX Works Intrinsyc’s manufacturing or storage facility (IncoTerms 2010). Title to the Intrinsyc Development Platform Kit(s) (excluding any Development Platform Software or Documentation included within such kits whereby title shall remain with Intrinsyc and its Licensors) shall pass to You upon provision of the Intrinsyc Development Platform Kit(s) to the shipper selected by Intrinsyc to deliver the Intrinsyc Development Platform Kit(s) to You.
12. Confidentiality. The Intrinsyc Development Platform Kit(s) and all related information provided hereunder are confidential and proprietary to Intrinsyc and/or its Licensors. You agree that You will only use the Intrinsyc Development Platform Kit(s) and all related information for the Purpose set forth in this Agreement. Unauthorized use or disclosure of the Intrinsyc Development Platform Kit(s) and/or all related information would cause irreparable harm and significant injury to Intrinsyc and/or its Licensors that would be difficult to ascertain or quantify; accordingly You agree that Intrinsyc and/or its Licensors shall have the right to obtain injunctive or other equitable relief to enforce the terms of this Agreement without limiting any other rights or remedies.
13. Term. This Agreement shall commence on the date Intrinsyc accepts Your order for the Intrinsyc Development Platform Kit(s), and shall continue until terminated in accordance with Section 14 (Termination).

14. Termination. This Agreement shall terminate immediately, without notice, if You fail to comply with any term or condition of this Agreement. If either party files a petition in bankruptcy or is adjudicated a bankrupt, or if a petition in bankruptcy is filed against either party and such petition is not discharged within sixty (60) days of such filing, or if either party becomes insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if either party discontinues its business or if a receiver is appointed for it or its business, this Agreement shall automatically terminate without any notice whatsoever being necessary. In addition, Intrinsyc may terminate this Agreement at any time upon notice to You or by posting notice on Intrinsyc’s website located at www.Intrinsyc.com. Termination of this Agreement shall be without prejudice to any other remedy which may be available to Intrinsyc due to default of this Agreement. Upon termination of this Agreement for any reason, all licenses granted by Intrinsyc to You under this Agreement shall terminate, and You shall immediately, at Intrinsyc's option, either return or destroy (and certify to the same) the Intrinsyc Development Platform Kit(s), including all confidential information of Intrinsyc and its Licensors. Any termination of this Agreement shall not prejudice Intrinsyc's right to recover any sums due or accrued at the time of such termination and shall not prejudice any cause of action or claim accrued or to accrue on account of any breach or default. The parties' rights and obligations which by their sense and context are intended to survive any termination or expiration of this Agreement shall so survive, including but not limited to, Section 4 (Restrictions). Section 5 (Ownership), Section 7 (Feedback), 10 (Price and Payment), Section 12 (Confidentiality), Section 14 (Termination), Section 15 (Disclaimer of Warranty), Section 16 (Limitation of Liability), Section 17 (Indemnification), Section 18 (Covenant Not to Assert), Section 19 (Government Compliance), Section 20 (U.S. Government End Users), Section 21 (Third Party Beneficiary) and Section 23 (Miscellaneous).


15. Disclaimer of Warranty. THE INTRINSYC DEVELOPMENT PLATFORM KIT(S) IS PROVIDED TO YOU “AS IS.” INTRINSYC, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS REGARDING THE INTRINSYC DEVELOPMENT PLATFORM KIT(S), WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INTRINSYC, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES DO NOT WARRANT THAT THE OPERATION OF THE INTRINSYC DEVELOPMENT PLATFORM KIT(S) WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS.

16. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INTRINSYC, ITS LICENSORS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE INTRINSYC DEVELOPMENT PLATFORM KIT(S), OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR TORT, NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF INTRINSYC, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT, TORT, NEGLIGENCE OR ANYTHING ELSE), THE ENTIRE LIABILITY (IN THE AGGREGATE) OF INTRINSYC, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO TEN DOLLARS ($10). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
17. Indemnification. You will fully defend, indemnify and hold each of Intrinsyc, its Licensors and their respective Affiliates, officers’ directors, employees, agents, successors and assigns harmless from and against any and all claims, demands, losses, damages, judgments, costs, liabilities and expenses (including attorneys’ fees) arising out of or related to: (i) Your use or misuse of the Intrinsyc Development Platform Kit(s), including, without limitation, any use, reproduction or distribution of the Intrinsyc Development Platform Kit(s) by You, which causes an infringement of any patent, copyright, trademark, trade secret, or other Intellectual Property Rights or publicity or privacy rights of any third parties arising in any jurisdiction anywhere in the world; (ii) the applications and/or services developed by You, whether alone or in combination; and (iii) any breach of this Agreement by You. If requested by Intrinsyc, You agree to defend Intrinsyc and its Licensors in connection with any third party claims, demands, or causes of action resulting from, arising out of or in connection with any of the foregoing.

18. Covenant Not to Assert. You hereby agree that neither You nor any of Your Affiliates will assert any action for the infringement of Your or Your Affiliates’ Patents against (i) Intrinsyc, its Licensors or their respective Affiliates for making (or having made), importing, using, selling, licensing or otherwise disposing of Development Platform Materials (as defined below); (ii) Intrinsyc, its Licensors or their respective Affiliates, foundries, for making Development Platform Materials for, or selling Development Platform Materials to, Intrinsyc, its Licensors or their respective Affiliates; or (iii) any direct or indirect customers of Intrinsyc, its Licensors or their respective Affiliates, for using Development Platform Materials purchased from Intrinsyc, its Licensors or their respective Affiliates. As used herein, the term “Development Platform Materials” means the Intrinsyc Development Platform Kit and any subcomponents or software embedded within the foregoing, including without limitation, any application specific integrated circuits (ASICs), multi-chip modules, electronic devices, integrated circuits, system in package (SIP), system on Chip (SoC), system on module (SOM) and including firmware thereon and accompanying or associated software.

19. Government Compliance. You shall be solely responsible for knowing and complying with any and all applicable federal, state and local statutes, laws and regulations, including, but not limited to, knowing and complying with any applicable Federal Communications Commission rules and regulations, as well as any federal, state and local statutes, laws and regulations pertaining to privacy, data protection and information security, with respect to the use of the Intrinsyc Development Platform Kit(s). You acknowledge that all hardware, software, source code and technology (collectively, "Products") obtained from Intrinsyc and its Licensors are subject to the US and Canadian government export control and economic sanctions laws. You shall ensure that You, Your subsidiaries and Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, "export") any Products or direct products thereof to any destination, person, entity or end use prohibited or restricted under US and/or Canadian laws without prior US and/or Canadian government authorization, as the case may be, to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan, Libya and Syria, but any amendments to the countries under a US embargo or sanction shall apply. You acknowledge that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with the same is the responsibility of You. This Section shall survive the expiration or termination of this Agreement. You shall not Export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China.

20. U.S. Government End Users. If You are acting on behalf of an agency or instrumentality of the U.S. government, the Development Platform Software, is “commercial computer software” and developed exclusively at private expense by Intrinsyc and/or its Licensors, as the case may be. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Development Platform Software is governed by the terms of this Agreement.

21. Third Party Beneficiary. Licensors of Intrinsyc and their Affiliates are third party beneficiaries of this Agreement, and thus this Agreement is directly enforceable by such Licensors and their Affiliates.

22. Non-Exclusive. It is expressly understood that this Agreement is non-exclusive for both parties. Except as specifically agreed otherwise, this Agreement does not grant either party any exclusive privileges of rights.

23. Miscellaneous. This Agreement is governed and interpreted in accordance with the laws of the Province of British Columbia without giving effect to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. Any claim arising out of or related to this Agreement must be brought exclusively in a federal or provincial court located in Vancouver, British Columbia and You consent to the jurisdiction and venue of such courts. If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement which shall continue in full force and effect, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent permissible the intent and agreements of the parties set forth herein. Any failure by either party to enforce any of its rights under this Agreement shall not be deemed a waiver of any right which such party has under this Agreement.

This Agreement shall be binding upon and inure to the benefit of any successor or permitted assignee of each of the parties. Neither party shall assign or otherwise transfer any of its rights, obligations or licenses under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Intrinsyc shall be entitled to assign all or any part of its rights or obligations under this Agreement to one or more of its Affiliates or to a purchaser of all or substantially all of its business, assets or stock.

The restrictions, limitations, exclusions and conditions set forth in this Agreement shall apply even if Intrinsyc, its Licensors or any of their Affiliates become aware of or fails to act in a manner to address any violation or failure to comply therewith. You hereby acknowledge and agree that the restrictions, limitations, conditions and exclusions imposed in this Agreement on the rights granted in this Agreement are not a derogation of the benefits of such rights. Intrinsyc and You are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership. This Agreement is the entire and exclusive agreement between Intrinsyc and You with respect to the Intrinsyc Development Platform Kit(s) which You have received hereunder and supersedes all prior agreements between Intrinsyc and You, along with any other communications (whether written or oral) between Intrinsyc and You. No purchase order or other ordering document of Yours which purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement unless signed by an authorized representative of each of the parties. The terms of this Agreement may only be varied by written amendment between the parties and signed by a duly authorized representative of each party.

 

Released 02/11/2014