SOFTWARE DEVELOPMENT KIT (SDK) LICENSE AGREEMENT
SDK FOR dynaEdgeTM AR Smart Glasses (“dynabook SDK”)
DYNABOOK EUROPE GMBH (“DBE”)
Stresemannallee 4b, 41460 Neuss, Germany
IMPORTANT: THIS LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (HEREINAFTER REFERRED TO AS “YOU” OR “DEVELOPER”) AND DBE. CAREFULLY READ THIS AGREEMENT. USE OF THE dynabook SDK AND ANY RELATED SDK COMPONENTS AS MAY BE APPLICABLE MADE AVAILABLE TO YOU BY DBE IN WHATEVER FORM OR MEDIA (COLLECTIVELY, “SOFTWARE”), WILL CONSTITUTE YOUR ACCEPTANCE OF THESE TERMS. IF SEPARATE TERMS ARE PROVIDED BY THE SOFTWARE SUPPLIER, THE TERMS OF THIS AGREEMENT THAT ARE NOT INCONSISTENT WITH THOSE SEPARATE TERMS WILL CONTINUE TO BE APPLICABLE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PLEASE DO NOT INSTALL, COPY OR USE THE SOFTWARE.
1. DEFINITIONS; SOFTWARE LICENSE GRANT.
“SDK Components” means Sample Code, Tools, Documentation and/or related items as may be applicable.
“Sample Code” means software code that DBE has included for DEVELOPER to incorporate into DEVELOPER application programs.
“Tools” means executable programs and utilities that may be included for DEVELOPER to test, compile DEVELOPER application programs and/or software that may be included to enhance operating environment of DEVELOPER’S application. DEVELOPER may use and distribute Tools with DEVELOPER’s application programs provided that the Tools reside outside of DEVELOPER’s application object code.
“Documentation” means any related explanatory materials accompanying the dynabook SDK.
SOFTWARE LICENSE GRANT. The Software is not sold. DBE grants to DEVELOPER a limited, non-transferable, royalty-free, revocable, and non-exclusive right to use the Software provided for internal development purposes, and subject to the limitations set forth in this AGREEMENT. Except as expressly set forth in this AGREEMENT, (a) DEVELOPER may not include any portion of the Software in DEVELOPER products; (b) DEVELOPER may not distribute, publish, display, sublicense, assign or otherwise transfer the Software to any party; and (c) DEVELOPER is not permitted to create or create for others any product or software that competes with any feature of the Software for a period of 5 (five) years from the effective date of this Agreement. Further, DEVELOPER shall not use the Software to create or develop, nor shall DEVELOPER include any portion of the Software in, any malicious code or infringing, inappropriate, unlawful or tortious material. With respect to third party software included in the Software, DBE is only passing along license rights which may be granted by the owner or licensor of the third party software, and DBE does not separately license these rights to DEVELOPER. DEVELOPER acknowledges that no title to any intellectual property rights in the Software, including any copyright rights, is transferred to DEVELOPER and that title and full ownership rights to the Software and all copies thereof will remain the exclusive property of DBE and/or its suppliers and will contain the same proprietary notices contained in or on the Software. DEVELOPER covenants and warrants that DEVELOPER will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, DEVELOPER may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Software, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) DEVELOPER has first requested such information from DBE and DBE failed to make such information available (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by DEVELOPER under this section is confidential information of DBE, may only be used by DEVELOPER for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Furthermore, DEVELOPER agrees not to create derivative works based on the Software. DBE reserves the right to terminate this license and to immediately repossess the Software in the event that DEVELOPER violates this AGREEMENT.
Subject to the terms of this AGREEMENT, DEVELOPER may use, modify or merge all or portions of the Sample Code with DEVELOPER application programs and distribute it only as part of DEVELOPER products in object code form. Any modified or merged portion of the Sample Code is subject to this AGREEMENT. Subject to the terms of this AGREEMENT, DEVELOPER may also use and distribute Tools with DEVELOPER’s application programs provided that the Tools reside outside of DEVELOPER’s application object code. DEVELOPER is required to include DBE’s copyright notices on DEVELOPER application programs except for those programs in which DEVELOPER includes a copyright notice reflecting the copyright ownership of DEVELOPER in such programs. DEVELOPER may not use DBE’s name, logo or trademarks to market DEVELOPER products, unless DEVELOPER has separately signed a trademark use agreement with dynabook. DEVELOPER may not assign its rights or obligations granted under this AGREEMENT without the prior written consent of DBE. Any attempted assignment or transfer without such prior written consent from DBE shall be void and of no effect. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this AGREEMENT.
2. CRITICAL USE; DISCLAIMER OF LIABILITY. The Software licensed hereunder is not designed for any “Critical Applications.” “Critical Applications” includes life support systems, medical applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where Software failure could lead to injury to persons or loss of life or catastrophic property damage. Accordingly, DBE disclaims any and all liability arising out of the use of the Software in any Critical Applications. If DEVELOPER uses the Software in a Critical Application, DEVELOPER, and not DBE, assumes full responsibility for such use.
3. LIMITED WARRANTY. The Software is supplied "as is". DBE warrants that the Software can be reasonably operated and is free of business critical bugs. However, DBE does not warrant that the Software (a) will carry no errors; (b) will meet any specific requirements not expressly warranted or (c) will work properly when used concurrently with any other hardware or software. Except as expressly provided herein DBE makes no other warranties, either expressed or implied, regarding the Software, its merchantability, or its fitness for any particular purpose and the entire risk as to the quality and the performance of the Software rests with DEVELOPER.
If DBE breaches the above warranty it may, at its discretion, remedy any failure of the Software by providing you with program corrections and/or instructions as to how such failure may be avoided during regular use. If the Software has been provided to you free of charge and any remedy of a failure is unreasonably onerous for DBE then DBE may elect that you discontinue the further use of the Software.
DBE shall have no liability to remedy a failure of the Software if such failure arises as a result of (a) use or handling of the Software otherwise than in accordance with the manuals, including but not limited to Operator's Manual, User's Guide, and/or incorrect or careless handling or use of the Software; (b) any cause which prevents the Software from operating or functioning correctly which arises from or is attributable to either acts, omissions, events or accidents beyond the reasonable control of DBE including without limitation acts of God, war, riot, civil commotion, malicious or deliberate damage, fire, flood, or storm, natural calamity, earthquakes, abnormal voltage or other disasters; (c) use in any operating environment or with settings other than those recommended by DBE; or (d) use of the Software with hardware, goods or other software which DBE has not directly or indirectly supplied.
DBE is under no obligation to provide any support under this AGREEMENT, including upgrades or future versions of the Software, or any portions thereof, to DEVELOPER or to any other party. DBE is acting on behalf of its suppliers and/or affiliates for the purpose of disclaiming, excluding and/or restricting obligations, warranties and liability as provided in this AGREEMENT, but in no other respects and for no other purpose.
4. LIMITATION OF LIABILITY. Unless otherwise stated in this Agreement the contractual and non-contractual liability of DBE is based on the relevant statutory provisions. For damages caused by intent or gross negligence or under applicable product liability acts DBE shall be liable irrespective of the legal basis. For damages caused by simple negligence DBE is only liable (a) for damages resulting from death or personal injury; and (b) provided that you have paid for the Software, for damages resulting from the breach of essential contractual duties (cardinal duties); in this case, the liability of DBE is limited to foreseeable damages that are typically associated with this kind of agreement. An essential contractual duty is a duty whose compliance is of particular importance for achieving the contractual purpose. All other claims of you based on contract or tort are excluded. For this reason, DBE is not liable for consequential or indirect damages, for loss of profits or other financial loss of you. To the extent to which the liability of DBE is excluded or limited, this shall also apply in respect of the personal liability of its employees, representatives and agents. For the avoidance of doubt, DBE shall not be liable for any loss, cost, expense, claim, or damage whatsoever caused by any of the events described in the last but one paragraph of section 3 above. In any event, DBE's sole obligation or liability under this Agreement, regardless of the nature of the events that resulted in such an obligation or liability, shall not exceed the purchase price originally paid for the Software. The liability according to the Product Liability Act shall remain unaffected.
5. TERM; AUDIT. This AGREEMENT is effective until terminated. DBE has the right to terminate this AGREEMENT immediately, without judicial intervention, if DEVELOPER fails to comply with any term herein. Upon any such termination DEVELOPER must remove all full and partial copies of the items in the SOFTWARE from DEVELOPER’s computer and discontinue the use of the items in the SOFTWARE. DBE will have the right to audit DEVELOPER’S use of the Software, including any use by its directors, officers, employees or contractors of the Software to assure compliance with the terms of this AGREEMENT, including compliance with the permitted number of Software licenses. DEVELOPER will be responsible for assuring full cooperation with DBE in connection with such audits and will provide DBE or obtain for DBE access to such properties, records, and personnel as DBE may reasonably require for such purpose.
6. EXPORT CONTROL. This Agreement involves hardware, software, technology, technical data and/or source code that may be controlled under export control laws and regulations of the United States, the European Union, Japan and any other country (“Export Control Laws”). DEVELOPER agrees that any DEVELOPER product that includes Sample Code will not be shipped, transferred or exported into any country or used in any manner prohibited by such Export Control Laws. Any export, directly or indirectly, in contravention of applicable Export Control Laws is strictly prohibited.
7. GOVERNING LAW. This AGREEMENT shall be construed in accordance with the laws of Germany excluding the applicability of the United Nations Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be the place of business of DBE.
8. SEVERABILITY. If any provision of this AGREEMENT shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this AGREEMENT so as to affect the original intent of the parties as closely as possible so that transactions contemplated hereby are fulfilled to the extent possible.
9. INDEMNIFICATION. DEVELOPER agrees to indemnify, hold harmless, and defend DBE from and against any claims or lawsuits, including attorneys' fees, that arise or result from the use and distribution of DEVELOPER's products that contains or is based upon any portion of the Software or the use of the Software in any Critical Applications, provided that DBE gives DEVELOPER prompt written notice of any such claim, tenders to DEVELOPER the defense or settlement of such a claim at DEVELOPER's expense and cooperates with DEVELOPER, at DEVELOPER’s expense, in defending or settling such claim.
10. NON-BLOCKING OF TCSE DEVELOPMENT. DEVELOPER acknowledges that DBE is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that DEVELOPER may develop based on the rights herein. Nothing in this AGREEMENT shall impair, limit or curtail DBE's right to continue with its development, maintenance and/or distribution of DBE's technology or products. DEVELOPER agrees that DEVELOPER shall not assert in any way any patent owned by DEVELOPER arising out of or in connection with this Software or modifications made thereto against DBE, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors for the manufacture, use, import, licensing, offer for sale or sale of any DBE products
11. OPEN SOURCE SOFTWARE. Notwithstanding anything to the contrary, DEVELOPER is not licensed to (and DEVELOPER agrees that DEVELOPER will not) integrate or use this Software with any Viral Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the Software in source code form, for the purpose of making derivative works, or at no charge. For the purposes of this Section, "Viral Open Source Software" shall mean software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license terms that could require, or condition DEVELOPER’s use, modification, or distribution of such software on, the disclosure, distribution, or licensing of any other software in source code form, for the purpose of making derivative works, or at no charge. Any violation of the foregoing provision shall immediately terminate all of DEVELOPER’s licenses and other rights to the Software granted under this AGREEMENT.
12. SURVIVAL OF PROVISIONS. Sections 2 (Critical Use; Disclaimer of Liability), 3 (Limited Warranty), 4 (Limitation of Liability), 7 (Governing Law), 8 (Severability), 9 (Indemnification), 10 (Non-Blocking of DBE Development), 11 (Open Source Software) and 12 (Survival of Provisions) of this AGREEMENT shall survive any termination or expiration of this AGREEMENT.
Date/Version: August 2020