This SDK LICENSE AGREEMENT (“SDK License Agreement”) sets forth the terms pursuant to which Licensee will be permitted to use Asensei’s Software Development Kit as described in an applicable Order Form (together with the SDK License Agreement, the “Agreement”). By entering into such Order Form, Licensee hereby agrees to the terms of this Agreement. The terms of this Agreement are effective as of the applicable Order Form Effective Date.
In the event of any inconsistency or conflict between the terms of the SDK License Agreement and the terms of any Order Form, the terms of the Order Form shall control.
1. LICENSE TO SOFTWARE DEVELOPMENT KIT
1.1. General. The Software Development Kit is licensed to Licensee for use only as permitted by this Agreement. Asensei reserves all rights in the Software Development Kit not expressly granted to Licensee. The rights granted below are non-exclusive and limited in nature.
1.2 Development License. Subject to the terms and conditions of this Agreement and the Order Form, Asensei grants Licensee a limited, non-exclusive, non-transferable (except as set forth in Section 12.1) right and license, without the right to sublicense (except as provided herein or in the Order Form), under Asensei’s Intellectual Property embodied in the Software Development Kit to:
1.2.1. use the Software Development Kit internally or have the Software Development Kit used internally by an Authorized Developer to develop Licensed Product Software solely for Licensee;
1.2.2. license and distribute the Licensed Product Software in Protected Format in the Territory to Licensee’s end user customers of the Licensed Product as incorporated and integrated or bundled within the Licensed Products (including through the deployment of mobile applications that integrate with the Licensed Product) that enable end users to utilize the Asensei Technology with the Licensed Product.
1.3. License Restrictions & Conditions. Licensee agrees that Licensee shall not use or otherwise exploit the Software Development Kit outside the scope of the express license granted under Section 1.2 (Development License) of this Agreement. Moreover, Licensee’s use of the Software Development Kit must, in all cases, be in accordance with the Documentation. Except as expressly provided in Section 1.2.2, the Software Development Kit may not be sold, sublicensed, or otherwise provided to any third party by Licensee. As a condition to Licensee’s license hereunder, Licensee must design and configure the Licensed Products and the Licensed Product Software so that the Licensed Product Software can be used and distributed solely with the respective Licensed Products for which such Licensed Product Software is authorized (as identified in the Order Form). Licensee must use its best efforts to either (a) provide any SDK Source Code included as part of the Licensed Product Software in object code (compiled, non-human readable) format, or (b) where it is not possible to provide the SDK Source Code or any portion thereof in object code format, to obfuscate and encrypt any readable SDK Source Code included in the Licensed Product Software using best industry available tools or such other tools that may be requested by Asensei from time to time, to transform the SDK Source Code so that it is protected against unauthorized viewing and access, code theft, reverse engineering, piracy, violation of license restrictions, or injection of malicious code, in accordance with best industry practices and standards (collectively, “Protected Format”).
1.4. No Other Licenses. Except as expressly set forth in this Agreement, no license or other right is granted by either party to the other, directly or by implication, estoppel or otherwise, and no such license or other right will arise from the consummation of this Agreement or from any acts, statements or dealings leading to such consummation.
1.5. Restrictions. Subject to Section 1.3, Licensee shall not (and shall not allow or facilitate any third party to) (a) read any portion of the Software Development Kit that is in readable format or that has the capability of being read (other than SDK Source Code by Licensee or Authorized Developers), or alter, adapt, modify, amend, translate, reverse engineer, reverse compile, decompile, reverse assemble, disassemble or create derivative works of the Software Development Kit or the Documentation in any way for any purpose, including without limitation any error correction; (b) attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software Development Kit, including without limitation any such mechanism used to restrict or control the functionality of the Software Development Kit, (ii) (x) other than with respect to the SDK Source Code by Licensee or Authorized Developers, attempt to gain access to any Source Code, or (y) to derive the Source Code or the underlying ideas, algorithms, structure or organization, methods, or techniques used or embodied in the Software Development Kit, or (iii) to use the Software Development Kit and/or Documentation, or any insights, ideas, algorithms, structure, organization, know-how or other information derived from the use of or reference to the Software Development Kit and/or Documentation to develop software or applications other than the Licensed Product Software and Licensed Product or to develop another software development kit; (c) act in any manner that would cause the Software Development Kit or Licensed Product Software or any authorized derivative works thereof to be subject to Open Source Software Terms (except as provided in Section 3.2 below); or (d) remove any product identification, proprietary, copyright or other notices contained in the Software Development Kit or Documentation. Moreover, Licensee shall not use, inspect or analyze the Software Development Kit or Documentation other than solely as necessary for the exercise of Licensee’s rights under this Agreement.
1.6. Notices. Each copy of Licensed Product Software must include a copyright or other notice sufficient to protect Asensei’s Intellectual Property rights in and to the Software Development Kit. In addition, (a) the Licensed Product (including any mobile applications that integrate with the Licensed Product) and its documentation shall state that the Licensed Product is “powered by asensei”, or such other statement as Asensei may reasonably designate from time to time, and (b) if Asensei provides any startup or opening screens (i.e., “splash screens”) to Licensee for incorporation into the Licensed Product, Licensee must design the Licensed Product to show such screen during each startup of the Licensed Product, and shall ensure that any sublicensees of the Licensed Product do not remove such screen, such that the end user of the Licensed Product sees such screen upon each startup of the Licensed Product.
1.7. End User Licenses. Licensee shall cause sublicensees and end users, as applicable, to enter into license terms with Licensee, and, if sublicensees are licensing the Licensed Product to end users, shall cause such sublicensees to enter into license terms with end users with such applicable sublicensee, in each case that are consistent with the terms of this Agreement. Without limiting the generality of the foregoing, such terms must, at a minimum, include a restriction enforceable against end users of the Licensed Product that provides that (a) end users are prohibited from (i) reading, or altering, adapting, modifying, amending, translating, reverse engineering, reverse compiling, decompiling, reverse assembling, disassembling or creating derivative works of the Licensed Product Software in any way for any purpose, (ii) attempting to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Licensed Product Software, including without limitation, any Protected Format and any mechanism used to restrict or control the functionality of the Licensed Product Software, or (iii) deriving or attempt to derive the Source Code or the underlying ideas, algorithms, structure, organization, methods, or techniques used or embodied in the Licensed Product Software; and (b) Asensei and its licensors are third party beneficiaries to such restrictions with respect to the Software Development Kit.
2. INTELLECTUAL PROPERTY
2.1. Ownership. Asensei or its licensors retain ownership of all Intellectual Property in and to the Software Development Kit provided by Asensei to Licensee under this Agreement, and Licensee shall not acquire any ownership rights in or to the Software Development Kit. Without limiting the foregoing, Licensee shall not file any application or registration for any Intellectual Property relating to the Software Development Kit. Subject to the foregoing, Licensee shall own all right, title, and interest in and to the Licensed Product Software including all Intellectual Property embodied therein, excluding Intellectual Property in and to the Software Development Kit and Asensei Technology.
2.2. Third Party Infringement. Licensee shall give notice to Asensei, promptly on becoming aware of the same, of any actual or suspected infringement of or challenge to the Intellectual Property rights of Asensei licensed to Licensee under this Agreement. Licensee shall, at the expense of Asensei, perform all actions and render all assistance as may be reasonably requested by Asensei in any proceedings related to any such actual or suspected infringement or challenge.
2.3. Feedback. During the course of this Agreement, Licensee may disclose to Asensei feedback, suggestions, and comments (“Feedback”) of or relating to the Software Development Kit or Documentation. Asensei shall be free to disclose and use such Feedback as it sees fit, entirely without obligation of any kind to Licensee, including to use, reproduce, prepare derivative works of, make, have made, import, offer for sale, sell, lease, distribute, publicly display, publicly perform, and otherwise exploit such Feedback in or with any Asensei products or technology.
2.4. No License or Sublicense Rights. Except for the right to distribute versions of the Licensed Product Software licensed to end-user customers in Protected Format pursuant and subject to Sections 1.2.2 and 1.7, Licensee shall have no right to, and shall not attempt or purport to, grant any license or sublicense to (i) any technology or software provided by Asensei to Licensee under this Agreement, including without limitation the Software Development Kit, or (iii) any Intellectual Property rights in or to any of the foregoing.
2.5. De-identified Data. The Asensei SDK measures usage and collects de-identified performance data, which data will be transmitted to Asensei. Asensei may access, view and manipulate user usage, performance and biomechanical data and other data relating to the provision and use of various aspects of the SDK [and the Licensed Product Software] (including, without limitation, data derived therefrom); provided, that such data is de-identified (“De-identified Data”), including, without limitation, for the purpose of making services available to the Licensee, improving SDK performance and auditing usage in accordance with Section 7.3 below. Asensei shall own all Intellectual Property Rights in any De-identified Data and shall be free to use the De-identified Data for any purposes; provided, it shall not disclose the origin of the De-identified Data set. Licensee shall ensure that the Licensed Product Software allows the SDK the ability to transmit such De-identified Data to Asensei during the License Term.
2.6. Modifications. If modifications to the SDK Source Code are required for Licensee to develop Licensed Product Software, such required modifications must be submitted to Asensei to be made by Asensei pursuant to a change request and may be subject to a separate Order Form. If any modifications to the SDK Source Code are made by Licensee in violation of this Agreement, such modifications and all Intellectual Property rights therein are hereby assigned to Asensei.
2.7. Competitive Products. Each party acknowledges that the other may already possess or have developed, or may in the future develop, products or services similar to or competitive with those of the other party, without use of the other party’s technology. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party; provided that such party is not thereby in breach of this Agreement.
3. THIRD PARTY TECHNOLOGY
3.1. The Software Development Kit may include software that Asensei has licensed from and is subject to the license terms of a third party (“Third Party Software”). The terms and conditions governing Licensee’s use of such Third Party Software are set forth in the license agreement indicated in the Third Party Software or should be obtained from the respective third party. Licensee’s use of the Third Party Software must comply with the terms of each applicable license agreement.
3.2. The Software Development Kit may include or require the use of Third Party Software that is subject to Open Source Software Terms or is licensed under a similar license agreement (“Open Source Software” and together with Third Party Software, “Third Party Technology”). The terms and conditions governing Licensee’s use of the Open Source Software are set forth in the license agreement indicated in the Open Source Software and not in this Agreement. Licensee understands and acknowledges that each Open Source Software license is a separate agreement between Licensee and the copyright holder of such Open Source Software and that Asensei is not a party to any such Open Source Software license. Licensee’s use of the Open Source Software must comply with the terms of each applicable Open Source Software license, including, without limitation, the inclusion in the Licensed Product Software of any required copyright notices.
3.3. Licensee acknowledges that it may need to obtain software from third parties (excluding the Third Party Software and Open Source Software provided by Asensei as part of the Software Development Kit) to use or for use with the Software Development Kit. It is Licensee’s responsibility to obtain and pay for any such required software.
3.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ASENSEI is not responsible or liable for, and MAKES NO WARRANTY OR REPRESENTATION AS TO THE THIRD PARTY TECHNOLOGY. THE THIRD PARTY TECHNOLOGY IS PROVIDED BY ASENSEI “AS IS” AND ASENSEI DISCLAIMS ANY WARRANTY TO LICENSEE OF ANY KIND WITH RESPECT TO THE THIRD PARTY TECHNOLOGY, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. asensei cannot guarantee the continued availability of such Third Party Technology. IN NO EVENT SHALL ASENSEI BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE THIRD PARTY TECHNOLOGY.
4. SUPPORT
Asensei shall provide support to License in connection with the Software Development Kit as described here: SDK Support.
5. LIMITED WARRANTY
Asensei warrants that (i) it has rights in and to the Software Development Kit and the Asensei Technology, and any Documentation related thereto sufficient to grant the rights to Licensee granted herein; (ii) the Software Development Kit will substantially conform to the specifications in the Documentation for a period of ninety (90) days, subject to the support provisions available at SDK Support. Asensei does not warrant that operation of the Software Development Kit shall be uninterrupted or error free. In the event of a breach of the foregoing warranty, Asensei’s sole obligation, and Licensee’s sole and exclusive remedy for such breach, shall be that Asensei shall make all commercially reasonable efforts to promptly correct the non-conforming Software Development Kit without charge.
6. MUTUAL CONFIDENTIAL INFORMATION
6.1. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of the Order Form constitute the Confidential Information of each party. The Software Development Kit, Documentation and Asensei Technology constitute the Confidential Information of Asensei.
6.2. Non-Disclosure and Non-Use. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party except to its own employees, consultants and contractors who have a need to know and who are bound by nondisclosure and restricted use agreements that comport with the applicable provisions of this Agreement, and will not use the Confidential Information of the Disclosing Party except as permitted by this Agreement. The Receiving Party will use at least the same level of care to maintain the Confidential Information of the Disclosing Party as it uses to maintain the confidentiality of its own non-public information and in no event less than a reasonable degree of care.
6.3. Exceptions. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate through documented evidence that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors without use or reference to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall to the extent legally permitted promptly (in any event within two (2) business days) notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information and cooperates in the other party’s efforts to seek a protective order or to otherwise prevent or limit such disclosure. In addition, Asensei may disclose the existence and terms of this Agreement in confidence in connection with a financing, a potential merger or acquisition of substantially the entire business of Asensei to which this agreement relates, a private offering of Asensei’s securities, and Asensei may disclose that Licensee is a customer on its website and in marketing materials. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the Disclosing Party all of Disclosing Party’s Confidential Information or to certify to the Disclosing Party in writing that all such material has been destroyed, except to the extent necessary to retain a single archival copy of any tangible or electronic Confidential Information provided by a Disclosing Party under this Agreement as required by law or legal process or for Confidential Information stored or created during automatic system back-up. Such retained copies of Confidential Information shall remain subject to the confidentiality and non-use obligations herein.
7. PRICING AND PAYMENT
7.1. Pricing. Pricing for the rights granted herein and any other services that Asensei has agreed to provide pursuant to an Order Form and applicable payment terms are set forth on the Order Form. All payments hereunder are non-refundable. Licensee shall make all payments in the currency specified in the Order Form and be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Asensei), which shall be included on each invoice.
7.2. Late Payments. If Asensei has not received payment of any amount within fifteen (15) days after the applicable due date as specified in the Order Form, without prejudice to any other rights and remedies of Asensei, Asensei may, without liability to Licensee, disable Licensee’s access to all or part of the Software Development Kit or any services being provided by Asensei under the Order Form and Asensei shall be under no obligation to provide any or all of the Software Development Kit or such services while the invoice(s) concerned remain unpaid. Interest shall accrue on all past due amounts on a daily basis at the rate of 1.5% per month or the highest legal rate, whichever is less, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.3. Per User Pricing. The De-identified Data will be used by Asensei for usage auditing. Per user fees will be calculated and invoiced by Asensei based on the De-identified Data.
7.4. Audit. During the term of this Agreement and for a period of one (1) year after, Licensee will retain accurate books and records of its use of the Software Development Kit and distribution of Licensed Product Software and compliance with the provisions of this Agreement, including records sufficient to allow Asensei to verify any fees due pursuant to this Agreement and the Order Form, and allow Asensei and its representatives to audit such books and records for such compliance. The audit will be conducted at Asensei’s expense; provided that if the audit reveals material noncompliance with this Agreement, including an underpayment of more than three percent (3%), Licensee will, without limiting Asensei’s other remedies, reimburse Asensei its reasonable costs of audit, and immediately pay any amounts due as a result of the audit. The audit must be conducted on at least seven (7) business days’ written notice and during normal business hours.
8. TERM AND TERMINATION
8.1. Term. Unless earlier terminated in accordance with the terms of this Agreement, this Agreement will commence upon the applicable Order Form Effective Date and shall terminate upon the expiration or non-renewal of the License Term set forth in the Order Form.
8.2. Termination for Breach, Dissolution and Bankruptcy. Either party may terminate this Agreement (i) if the other party fails to cure any material breach, default or non-compliance of or with any term or condition hereof that is capable of cure within thirty (30) days of receiving notice of such breach, default or non-compliance, (ii) upon notice in the event of a material breach, default or non-compliance by other party that is not capable of cure, (iii) if the other party ceases to do business, or otherwise terminates its business operations, or (iv) if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement or comparable proceeding, or if any such proceeding is instituted against the other party and such proceeding is not dismissed within ninety (90) days.
8.3. Effect of Termination or Expiration. Upon any termination of this Agreement, all licenses granted to Licensee herein will automatically cease as of the date of termination, and unless otherwise expressly agreed in a written agreement signed by Asensei, Licensee shall promptly either return to Asensei or, with Asensei’s prior written consent, destroy all Software Development Kit and Documentation and other materials that reflect such information in its possession or control, subject to Section 6.3. Notwithstanding the foregoing, end user customers with a valid license to the Licensed Product Software prior to the termination effective date may continue to use such Licensed Product Software through the term of such license, subject to the continued payment by Licensee of the fees provided on the Order Form.
8.4. Survival of Certain Provisions. The provisions of 1.3 through 1.7, 2 (Intellectual Property), 2.5 (De-Identified Data), 3 (Third Party Technologies), 6 (Mutual Confidential Information), 7 (Pricing and Payment), 8.3 (Effect of Termination or Expiration), 8.4 (Survival of Certain Provisions), 9 (Indemnification), 10 (Warranty Disclaimer), 11 (Limitations of Liability) and 12 (General Provisions) of this Agreement will survive any expiration or termination of this Agreement.
9. INDEMNIFICATION
9.1. Asensei’s Indemnification Obligations. Asensei at its own expense shall: (a) defend, or at its option settle, any third-party claim or suit brought against Licensee on the basis of infringement of any United States copyright or trade secret by the Software Development Kit or Licensee’s use thereof; and (b) pay any final judgment entered against Licensee on such issue or any settlement thereof, provided (i) Asensei has sole control of the defense and/or settlement of such claim or suit; (ii) Licensee notifies Asensei promptly in writing of such claim or suit and gives Asensei all information known to Licensee relating thereto; and (iii) Licensee cooperates with Asensei in the settlement and/or defense of such claim or suit. Licensee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Asensei. If all or any part of the Software Development Kit is, or in the opinion of Asensei may become, the subject of any claim or suit for infringement, Asensei may, at its expense: (w) procure for Licensee the right to use and distribute the Software Development Kit or the affected part thereof; (x) replace the Software Development Kit or affected part with a non-infringing Software Development Kit or component; (y) modify the Software Development Kit or affected part to make it non-infringing; or (z) if none of the foregoing remedies are commercially feasible, Asensei may terminate the Agreement. Asensei shall have no obligations under this Section 9.1 to the extent a claim is based upon or related to (A) the use of any version of the Software Development Kit other than a current, unaltered release, if such infringement would have been avoided by the use of a current, unaltered release; (B) the combination, operation or use of the Software Development Kit with any product, technology software, hardware or other content or material that was not provided by Asensei, if such infringement would have been avoided in the absence of such combination, operation or use; (C) the modification of the Software Development Kit by any person other than Asensei; (D) the use of the Software Development Kit in a manner not authorized by this Agreement; (E) Third Party Technology; or (F) a claim Licensee is obligated to indemnify Asensei against pursuant to Section 9.2. The foregoing states the entire obligation of Asensei with respect to the infringement of intellectual property rights.
9.2. Licensee Indemnification Obligations. Licensee shall indemnify and hold Asensei harmless from and against all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) of any kind and nature that may be asserted, granted or imposed against Asensei directly or indirectly arising from or in connection with: (a) any claims of personal injury or death or property damage arising from the use of the Licensed Product or Licensed Product Software, (b) any claims that any Licensed Product, Licensed Product Software or other product, technology, hardware, software or other content or material supplied, developed, made, used, marketed, licensed or distributed by Licensee (other than the Asensei Technology) infringes any third-party Intellectual Property Rights; (c) any misrepresentation made by Licensee regarding Asensei or the Asensei Technology; (d) any breach by Licensee of this Agreement; (e) any warranty, representation or guarantee made by Licensee or its resellers, distributors or agents with respect to the Licensed Product or Licensed Product Software; or (f) Licensee’s use of Third Party Technology.
10. WARRANTY DISCLAIMER
10.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ASENSEI MAKES NO WARRANTY OR REPRESENTATION AS TO THE SOFTWARE DEVELOPMENT KIT, LICENSED PRODUCT SOFTWARE, DOCUMENTATION OR ANY OTHER MATERIALS PROVIDED BY ASENSEI HEREUNDER, ALL OF WHICH ARE PROVIDED TO LICENSEE “AS IS” AND ASENSEI DISCLAIMS ANY OTHER WARRANTY TO LICENSEE OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.
10.2. ASENSEI MAKES NO WARRANTY OR REPRESENTATION THAT THE SOFTWARE DEVELOPMENT KIT WILL MEET LICENSEE’S REQUIREMENTS OR WORK IN COMBINATION WITH ANY HARDWARE OR APPLICATIONS SOFTWARE PROVIDED BY LICENSEE OR THIRD PARTIES, THAT THE OPERATION OF THE SOFTWARE DEVELOPMENT KIT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN ANY SOFTWARE DEVELOPMENT KIT WILL BE CORRECTED. ASENSEI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THIRD PARTY TECHNOLOGY.
11. LIMITATION OF LIABILITY
11.1. IN NO EVENT WILL ASENSEI BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR LOSS OF PROFITS OR GOODWILL, OR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND WHETHER ARISING FROM CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT.
11.2. IN NO EVENT WILL ASENSEI’S total aggregate LIABILITY ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY LICENSEE TO ASENSEI UNDER THIS AGREEMENT FOR THE LICENSE OF THE SOFTWARE DEVELOPMENT KIT, IF ANY. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ASENSEI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. GENERAL PROVISIONS
12.1. Assignment. Licensee may not assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Asensei. Asensei may assign this Agreement and any of its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
12.2. Notice. Unless otherwise changed by notice in writing from Licensee to Asensei, Asensei shall serve notice upon Licensee electronically, which notice shall be deemed to have been duly given when transmitted to the Licensee email address set forth on the Order Form. In addition, notice may be duly given when prominently posted on SDK Support and Licensee acknowledges that it should regularly review that site for any notices. Unless otherwise changed by notice in writing from Asensei to Licensee, Licensee shall serve notice upon Asensei electronically at legalagreements@asensei.com, which shall be deemed to have been duly given when Asensei provides verification of receipt.
12.3. Severability. If any paragraph or provision of this Agreement shall be found to be void or invalid as a matter of law, such paragraph or provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining paragraphs or provisions of this Agreement shall nevertheless remain in full force and effect.
12.4. Waiver. No failure, relaxation, forbearance, delay or negligence by any party hereto in enforcing any of the terms and conditions of this Agreement, or the granting of time by any party to another, shall operate as a waiver or prejudice, affect or restrict the rights, powers or remedies of any party hereto.
12.5. Complete Agreement. This Agreement and the Exhibits attached hereto represent the full and complete agreement and understanding of the parties with respect to the subject matter hereof, and supersede and replace all prior and contemporaneous understandings or agreements, whether oral, written or otherwise, regarding such subject matter. Any amendment thereof must be in writing and executed by the parties hereto.
12.6. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party shall be liable for any debts, accounts, obligations or other liabilities of the other party. Neither party is authorized to bind the other nor incur any debts or other obligations of any kind on the part of or as agent for the other except as may be specifically authorized in writing.
12.7. Compliance with Laws. Licensee agrees to comply with all applicable laws and regulations in respect of the development, distribution and use of the Licensed Product Software and Licensed Products and in the exercise and performance of its rights and obligations under this Agreement, including, without limitation, all export laws, restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority. Licensee agrees not to export, or allow the export or re-export of any Software Development Kit, or of information regarding the Software Development Kit in violation of any such restrictions, laws or regulations.
12.8. Authority. Each party represents and warrants that it has the right, power and authority to enter into this Agreement.
12.9. No Third Party Beneficiaries. Unless otherwise expressly provided in this Agreement, no provisions of this Agreement are intended to or shall be construed to confer upon any person or entity other than Licensee and Asensei any rights, remedies or other benefits under or by reason of this Agreement.
12.10. Governing Law, Jurisdiction & Venue. This Agreement is to be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Transactions Act shall not apply to this Agreement. Any action or proceeding arising out of or relating to this Agreement shall be resolved exclusively by arbitration in San Francisco, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The language to be used in the arbitral proceeding shall be English. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. Either party to this Agreement may request any competent judicial or other authority to order any provisional or conservatory measure (including any injunction), either prior to the institution of the arbitration proceeding or during such proceeding, for the preservation of its rights and interests. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
12.11. Force Majeure. No party shall be responsible or liable to another party for nonperformance or delay in performance (other than payment obligations) of any terms or conditions of this Agreement due to acts or occurrences beyond the reasonable control of the nonperforming or delayed party, including but not limited to, acts of God, acts of government, wars, riots, strikes or other labor disputes, fires and floods, provided the nonperforming or delayed party provides to the other party written notice of the existence and the reason for such nonperformance or delay.
12.12. Headings. The headings contained in this Agreement are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
12.13. Language. This Agreement is in the English language and any versions of this Agreement in any other language shall not be binding on the parties. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
12.14. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which will be considered an original and all of which together will constitute one agreement. This Agreement may be executed by the attachment of signature pages which have been previously executed.
13. DEFINITIONS
13.1. “Affiliate” means, in relation to an entity, any entity (i) Controlling, (ii) Controlled by, or (iii) under common Control with, such entity, but only for so long as such Control exists. “Control” means the ownership of or right to control more than 50% of voting securities of such entity.
13.2. “Asensei Technology(ies)” means the technology described in the Order Form that is designed, developed, marketed, licensed and/or distributed by or on behalf of Asensei.
13.3. “Authorized Developer” means the company(ies) identified in the Order Form, if any, who may access and use the Software Development Kit on behalf of Licensee for the sole purpose of developing Licensed Product Software for delivery to Licensee.
13.4. “Documentation” means any electronic or hardcopy manuals or documentation provided by Asensei to Licensee in connection with the Software Development Kit under this Agreement.
13.5. “Intellectual Property” means patents, certificates of invention, utility models, design rights, mask work rights, chip topographies and similar invention rights, copyrights, moral rights, database rights, trade secret rights and any other intangible property or proprietary rights recognized anywhere in the world under any local, state or national statute or treaty or common law right, including without limitation all applications and registrations with respect to any of the foregoing.
13.6. “Licensed Product” means those Licensee branded electronics devices, apps, webapps and supporting technologies that contain elements of the Software Development Kit that are designed, developed, and sold by Licensee and identified in the Order Form.
13.7. “Licensed Product Software” means software developed by Licensee hereunder that is based on or incorporates the Software Development Kit and is designed for the sole purpose of being integrated or bundled with and enabling a Licensed Product to deploy the Asensei Technology.
13.8. “Open Source Software Terms” means terms in any license for software which require, as a condition of use, modification or distribution of such software or other software incorporated into, incorporating, derived from, distributed or used in conjunction with such software (a “Work”), any of the following (i) the making available to any third party of Source Code, object code, or design information regarding the Work, (ii) the granting of permission to any third party for creating derivative works regarding the Work, or (iii) the granting of a license to any third party under Intellectual Property embodied in the Work. By means of example and without limitation, the following licenses and distribution models have Open Source Software Terms: the GNU General Public License (GPL), the GNU Lesser or Library GPL (LGPL), the Mozilla Public License (MPL) or any similar open source, free software or community licenses.
13.9. “SDK” or “Software Development Kit” means: (a) software (including SDK Source Code), applications, tools, sample code, templates, fonts, logos, icons, images, libraries, interfaces, information, data, files, and other materials, whether tangible or intangible, in whatever form or medium that are part of the Software Development Kit identified in the Order Form and delivered by Asensei to Licensee under this Agreement for the purpose of integrating and deploying the Asensei Technology with Licensee’s Licensed Products, and (b) any modifications, updates, improvements or error corrections to the items in subpart (a) provided by Asensei to Licensee under this Agreement.
13.10. “SDK Source Code” means Source Code included as part of the SDK and provided to Licensee in Source Code form, including descriptions of posture, movement, exercises, coaching, coaching cues, and teaching syllabus, etc. that are described in such code.
13.11. “Source Code” means application templates, code stubs, code snippets, example applications, sample code, and code fragments in source code or human readable form.
13.12. “Territory” means the territory identified in the Order Form.
