THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND HILLCREST LABORATORIES ("HILLCREST") IN CONNECTION WITH YOUR PURCHASE OF A HILLCREST PRODUCT. BY ACCEPTING BELOW, OR BY DOWNLOADING, INSTALLING OR USING THE HILLCREST SOFTWARE (DEFINED BELOW) OR ITS RELATED DOCUMENTATION OR ANY OTHER PART OF THE ACCOMPANYING KIT (DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE HILLCREST SOFTWARE OR KIT. YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ORGANIZATION NAMED IN YOUR REGISTRATION FORM, IF ANY, AND IF SUCH AN ORGANIZATION IS NAMED, SUCH ORGANIZATION SHALL BE DEEMED TO BE THE “LICENSEE” REFERRED TO IN THIS AGREEMENT. IF NO SUCH ORGANIZATION IS NAMED, THEN YOU INDIVIDUALLY SHALL BE DEEMED TO BE THE “LICENSEE”.
a. “Application Software” means application software used by a Hillcrest product, included by Hillcrest in a Kit, or available for download, that executes on a personal computer or any other platform other than a Component.
b. “Assembled Product” means a Hillcrest product, or a device resulting from the assembly of the Components, Firmware and Application Software included in a single Kit according to the instructions contained in the associated Documentation.
c. “Component” means a physical component (electrical, mechanical or otherwise) that may be included by Hillcrest in a Kit or purchased independently by Licensee.
d. “Development Software” means software provided by Hillcrest in any form that is designed to enable a user to (i) create applications compatible with the Hillcrest Technology, (ii) evaluate the features and performance of Hillcrest Software and Components, and (iii) to integrate Licensee’s products and services with the Hillcrest Technology.
e. “Documentation” means the printed or electronic schematics, manuals, datasheets, instructions and other materials accompanying a Hillcrest product, Hillcrest Technology, Hillcrest Software and Components, or a Kit.
f. “Firmware” means the embedded software that executes on one or more Components.
g. “Hillcrest Software” means Application Software, Firmware and Development Software, or any other software provided by Hillcrest to Licensee in any form pursuant to the terms of this Agreement.
h. “Hillcrest Technology” means certain Hillcrest intellectual property and proprietary technology owned by Hillcrest, including product designs, layouts, schematics, and software (including Hillcrest Software), relating to three-dimensional motion control and/or Hillcrest’s Freespace® motion control technology.
i. “Kit” means any software development kit, design kit, reference kit or other product designated as a “kit” that is offered by Hillcrest to Licensee. A Kit may include Components, Firmware, Application Software, Development Software and/or Documentation.
j. “Licensee Development” means any software developed by Licensee using Development Software.
2. USE AND PROTECTION.
a. Hillcrest grants Licensee a limited, non-exclusive, non-transferable license to use each Hillcrest product or Kit as follows:
(i) with respect to any Kit and Component combinations, to use the Components and any Firmware, Application Software and Documentation included therewith to design, manufacture and test Assembled Products solely for purposes of Licensee’s internal evaluation and demonstration to third parties; and
(ii) with respect to any Hillcrest product or Kit that includes Development Software, to use such Development Software internally in object code form for the sole purposes of developing Licensee Developments, developing Assembled Products and demonstrating such Licensee Developments and Assembled Products to third parties.
Licensee shall not use any Hillcrest products or Hillcrest-provided Components, Hillcrest Software, Hillcrest Technology, or Documentation for any purpose other than those listed in (i) and (ii) above.
b. Licensee shall be entitled to execute and copy Application Software, in executable object code form, solely on a single workstation or as otherwise described in the Documentation, and solely for the operation and testing of an Assembled Product. Licensee shall be entitled to execute and copy Development Software, in executable object code form, solely on a single workstation or as otherwise described in the Documentation, and solely for the purpose of developing, running and testing Licensee Developments.
c. Licensee shall not distribute, sell, or offer for sale the Kit or any Hillcrest-provided Components, Hillcrest Software or Documentation included therewith, or any Assembled Product, to any third party.
d. Licensee acknowledges that the Kit and any Hillcrest-provided Components, Hillcrest Software and Documentation included therewith, as well as the Hillcrest Technology embodied therein, are highly proprietary and confidential to Hillcrest. Licensee shall not disclose any of the foregoing or any information relating thereto to any third party other than personnel/representatives of Licensee who are required by Licensee to abide by the confidentiality and other obligations of this Agreement. Licensee shall be responsible for any breach of this Agreement by its personnel/representatives.
3. INTELLECTUAL PROPERTY.
a. Licensee acknowledges that the Kit, including all Components, Hillcrest Software and Documentation, as well the Hillcrest Technology and all functional and other elements of any Assembled Product that embody any Hillcrest Technology or are described in the Documentation, and any intellectual property or Hillcrest Technology used in connection therewith, are and shall continue to be owned by Hillcrest and its suppliers, and Licensee shall obtain no right with respect thereto other than as expressly stated in this Agreement.
b. Elements of an Assembled Product, such as the physical casing, color and aesthetic elements, that are designed or developed by Licensee and that are not described in the Documentation, shall be owned by Licensee, and Hillcrest shall obtain no right with respect thereto.
c. Licensee Developments shall be owned by Licensee, and Hillcrest shall obtain no right with respect thereto. Licensee acknowledges that such ownership shall give Licensee no license or other rights with respect to any Hillcrest Technology or other Hillcrest intellectual property that may be necessary or desirable for the use or operation, marketing, sale or distribution of such Licensee Developments.
d. Notwithstanding Licensee’s ownership of Licensee Developments pursuant to Section 3.c above, Licensee acknowledges that the reliability and integrity of software systems employing Hillcrest Technology will be maximized if Licensee Developments designed to operate only in connection with an Assembled Product, Component or Hillcrest Software. Licensee shall be free to license, lease or distribute Licensee Developments on terms of its choosing.
e. Licensee agrees that, except as set forth in Section 2.a, no license under any patent, copyright or other intellectual property right is granted by implication or otherwise to Licensee under this Agreement. The Hillcrest product or Kit, and all information and intellectual property relating to it shall remain the sole and exclusive property of Hillcrest.
f. Licensee will not copy, modify, decompile or reverse engineer the Hillcrest product or Kit, or any Hillcrest-provided Component or Hillcrest Technology, or attempt to obtain or copy the source code of any Hillcrest Software.
g. Licensee shall have no right hereunder to use or display any trademark, service mark, domain name, trade name or logo of Hillcrest (collectively, “Hillcrest Marks”). Licensee shall not register or reserve any Hillcrest Mark in any jurisdiction in the world.
4. DISCLAIMER OF WARRANTIES. THE HILLCREST PRODUCT OR KIT, AND ALL HILLCREST-PROVIDED COMPONENTS, HILLCREST SOFTWARE, AND DOCUMENTATION ARE PROVIDED “AS IS.” HILLCREST MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE HILLCREST PRODUCT OR KIT, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AS TO TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES THAT THE KIT MAY NOT CONTAIN ALL ELEMENTS NECESSARY TO BUILD A COMPLETE ASSEMBLED PRODUCT OR ANY PARTICULAR SOFTWARE APPLICATION, AND THAT CERTAIN ADDITIONAL ELEMENTS MAY BE REQUIRED TO BE OBTAINED BY LICENSEE AT ITS OWN EXPENSE. LICENSEE FURTHER ACKNOWLEDGES THAT THE HILLCREST PRODUCT OR KIT, AND ALL HILLCREST-PROVIDED COMPONENTS INCLUDED THEREIN ARE DESIGNED FOR RESEARCH AND TESTING PURPOSES ONLY AND THAT HILLCREST DOES NOT WARRANT THAT THE HILLCREST PRODUCT OR KIT, OR ANY HILLCREST-PROVIDED COMPONENT INCLUDED THEREIN HAS BEEN TESTED FOR COMPLIANCE WITH ANY REGULATORY OR INDUSTRY STANDARD, INCLUDING WITHOUT LIMITATION ANY SUCH STANDARDS PROMULGATED BY THE FCC OR UNDERWRITERS LABORATORIES, INC.
5. LIMITATION OF LIABILITY. IN NO EVENT SHALL HILLCREST BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF THE HILLCREST PRODUCT OR KIT OR (B) AGGREGATE DAMAGES IN EXCESS OF THE LICENSE FEES RECEIVED BY HILLCREST FROM LICENSEE HEREUNDER.
6. TERM & TERMINATION.
a. This Agreement shall commence on the date that Licensee accepts the terms of this Agreement (the “Effective Date”) and shall remain in effect unless terminated by Hillcrest as provided in Section 6.b.
b. Hillcrest may terminate this Agreement upon written notice to Licensee if Licensee materially breaches any provision of this Agreement. Upon such termination, Licensee shall return to Hillcrest (or destroy, at Hillcrest's sole discretion, with certification of such destruction to be provided by Licensee) all Hillcrest products, Kits, Hillcrest-provided Components, Hillcrest Software, Documentation and Assembled Products and shall retain no copy or record of same.
c. Hillcrest’s rights and remedies in connection with actions of Licensee taken during the term of this Agreement shall survive termination of this Agreement.
d. The provisions of this Agreement which are, by their terms, intended to survive, shall survive any termination of this Agreement.
a. Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of laws and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. Licensee agrees that the license of software hereunder shall not be subject to the Uniform Computer Information Transactions Act.
b. Specific Performance. In addition to any other rights and remedies Hillcrest may have upon a breach of this Agreement by Licensee, Hillcrest shall be entitled to specific performance or injunctive relief respecting the covenants contained herein, and Licensee expressly waives the defense that a remedy in damages will be adequate. Each of the Parties hereby agrees that the prevailing party in any action to enforce this Agreement shall be entitled to full recovery of its attorneys’ fees.
c. No Waiver. No failures or delay by Hillcrest in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
d. Export Compliance. Licensee agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Licensee covenants that it shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Hillcrest under the terms and conditions provided herein to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Licensee agrees to fully cooperate and provide, at Hillcrest’s request, documentation to certify same. Licensee agrees to indemnify, to the fullest extent permitted by law, Hillcrest from and against and fines or penalties that may arise as a result of Licensee’s breach of this provision. The terms of this export compliance clause shall survive termination or expiration of this terms and conditions.
e. English Language. This Agreement is prepared and executed in the English language, and the English language version shall prevail over any translation thereof.
f. Entire Agreement. This Agreement, together with any exhibits, addenda or attachments hereto which have been approved by both Parties in writing, contains the entire understanding between the Parties with respect to the subject matter hereof. The express terms of this Agreement control and supersede any course of performance and/or usage of the trade inconsistent therewith. Notwithstanding the foregoing, this Agreement shall be of no force or effect to the extent that the Parties have executed a separate written agreement (either prior to or following the date hereof) which covers the use of the licensed materials covered hereby.