Eltima IBC Inc.
Software Development Kit (SDK) License Agreement
THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN Eltima IBC Inc. (“LICENSOR”) AND LICENSEE (AS DEFINED BELOW) WITH RESPECT TO THE SOFTWARE IDENTIFIED BELOW. BY USING THE SOFTWARE (AS FURTHER DEFINED BELOW), LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE LICENSOR IS UNWILLING TO GRANT THE LICENSEE ANY RIGHTS TO USE THE SOFTWARE. IN SUCH EVENT, LICENSEE MAY NOT USE THE SOFTWARE, AND LICENSEE SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION.
PLEASE READ THIS AGREEMENT CAREFULLY. LICENSEE’S USE OF THE SOFTWARE INDICATES THAT LICENSEE HAS READ, ACCEPTED AND UNCONDITIONALLY AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. LICENSEE MAY NOT USE THE SOFTWARE IF LICENSEE IS A PERSON WHO IS (A) NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH LICENSOR, AND/OR (B) BARRED FROM RECEIVING THE SOFTWARE UNDER THE LAWS OF ANY COUNTRY INCLUDING THE COUNTRY IN WHICH THE LICENSEE IS A RESIDENT OR FROM WHICH THE LICENSEE IS USING THE SOFTWARE. LICENSEE HEREBY ACKNOWLEDGES THAT LICENSEE’S ELECTRONIC ASSENT CONSTITUTES LICENSEE’S AGREEMENT AND INTENT TO (A) BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (B) HONOR ALL TRANSACTIONS ENTERED INTO.
In the following, the terms “Licensee” shall refer, jointly and severally, to you individually and any organization on whose behalf you act.
This Agreement applies to any SDK provided by Licensor to Licensee or which includes, displays, or links to this Agreement, and to any updates, supplements or support services for this SDK. Licensee may only use this SDK in accordance with this Agreement.
Licensee and Licensor shall collectively be referred to as the “parties” and individually as the “party”.
The “SDK” shall mean the Virtual Serial Port Driver Software Development Kit, which is a set of software development tools that allows the creation of applications for a certain software package, software framework, hardware platform, computer system, video game console, operating system, or similar development platform.
The SDK shall include (a) all source and object code, programs, contents of the files (including but not limited to digital images, stock photographs, clip art, sounds or other artistic works), disk(s), CD-ROM(s) or other media that are provided to Licensee or used by Licensee, which pertain to Licensor’s exclusively owned “Virtual Serial Port Driver ®” (https://www.eltima.com/products/vspdxp/) including but not limited to SDK-related explanatory written materials or files (“Documentation”); and (b) upgrades, modified versions, updates, additions, and copies of the SDK, if any, licensed to Licensee by Licensor (collectively “Update(s)”).
More specifically, the SDK shall include the following components:
- Installation package;
- OEM redistributable package;
- Developer application programming interfaces (APIs);
- On-device libraries to interface to a particular programming language;
- Sample codes; and
- Technical notes or other supporting Documentation, such as tutorials to help clarify points made by the primary reference material.
The SDK shall be made available by Licensor to Licensee hereunder to assist Licensee in developing software/hardware solution(s) (each a “Licensee Product”) that utilize(s)/integrate(s) the SDK.
The Parties hereby acknowledge, accept and agree that the SDK contains two essential components for which Licensor hereby grants the Licensee the SDK license namely:
a) Design-time mode: this mode shall be utilized solely by the Licensee for internal development and integration purposes (“Design-Time Mode”), and
b) Run-time mode: this mode shall be utilized by the Licensee and incorporated/integrated/installed into a Licensee Product that may then be subsequently distributed to and utilized by the Licensee’s third-party customers / end-users (the “End-Users”), in the form of the SDK redistributable package, as provided by the Licensor (“Run-Time Mode”).
2. SDK License Grant.
A) Subject to Licensee’s compliance with the terms of this Agreement, as it pertains to the Design-Time Mode of the SDK, Licensee may download, install, and use the Design-Time Mode of the SDK on its devices solely to design, develop, integrate, implement, and test Licensee Product(s). Licensor hereby grants the Licensee a non-transferable license to use the SDK’s Design-Time Mode. The Licensee may not license, sub-license, or distribute the SDK’s Design-Time Mode to any third party, including End-Users.
B) Licensor grants Licensee a non-exclusive right to install and Use the SDK for the purposes described in the Documentation under the following conditions:
- SDK may be installed and used by Licensee for business, commercial and money-earning purposes;
- The SDK’s Design-Time Mode can be deployed by any number of Licensee’s developers on any number of Licensee’s compatible systems;
- under the SDK license, the SDK redistributable package may be incorporated into Licensee Product which is or will be sold/marketed by Licensee;
- Licensee may not electronically transfer/share the SDK to/with its third party manufacturing and service partners/contractors, UNLESS in order to incorporate the SDK redistributable package into Licensee Product, in cases when the manufacturing process requires the work contribution of Licensee’s third party manufacturing and service partners/contractors prior to launching/distributing Licensee Product(s) to End-Users. Once such third party partners/contractors completed their assignments, Licensee shall ensure that they destroy all copies of the SDK;
- Licensee or its third party manufacturing and service partners may electronically distribute the SDK’s Run-Time Mode ONLY AS an integral part of or incorporated into Licensee Product;
- This SDK license shall not be royalty-free, i.e. the Licensee shall pay licensing fees per integration of SDK into each Licensee Product;
- This SDK License does not include any license/rights to use SDK’s source code (machine code) except for the samples illustrating how to use Licensor’s technology in Licensee Product;
- This SDK License does not include redistribution or customization rights on the GUI which you can see in the demo and paid (licensed) versions of Licensor’s proprietary Virtual Serial Port Driver software product. Therefore, Licensee shall write its own interface if that is needed for the project.
C) Subject to Licensee’s compliance with the terms of this Agreement, as it pertains to the Run-Time Mode of the SDK, Licensee may, provided that Licensee reproduces, without limitation all, copyright notices, and other legal notices and terms, use, reproduce, modify, and distribute Licensee Products containing the embedded Run-Time Mode of the SDK to its End-Users, provided that the contained, included, or embedded SDK is in the form of the SDK redistributable package. The Run-Time Mode of the SDK may not be utilized by any End-User for any development purposes. Additionally, the Licensee may not license or sub-license the Run-Time Mode to any End-Users, unless such Run-Time Mode of the SDK is incorporated, included, or embedded in a Licensee Product.
D) Licensor reserves the right to discontinue offering the SDK (or any Updates thereto) or to modify the SDK at any time in its sole discretion.
E) Both during and after the term of this Agreement, Licensee agrees to not, directly or indirectly, develop, create, design, fund, or participate in the development of any software or hardware that directly or indirectly competes with the SDK.
3. Purchase Orders.
As used herein, the term “Purchase Orders” shall mean the written offer made by Licensor to the Licensee for the Licensee’s use of the SDK (including the Design License Fee, the Distribution License Fee, payment terms and conditions, and, if any, the initial maintenance fees), duly accepted and executed by the Licensee. Licensee shall pay a flat license fee for the distribution of the SDK to the Licensee (the “Design License”), at the rate, in the manner, and on the dates Licensor shall determine (the “Design License Fee”). In addition, the Licensee shall pay Licensor additional fees (the “Distribution License Fee”) based on the number of distributions of the SDK to the Licensee (the “Distribution License”). The Distribution License Fee shall apply to each computer, server, or hard drive upon which the Licensee desires to install the SDK. The Licensee shall pay the Design License Fee prior to the SDK being distributed to the Licensee. Should Licensee need or desire to install the SDK on additional computers, servers, or hard drives, at any time, then an additional Distribution License Fee shall apply. In such case, Licensee shall contact Licensor prior to attempting to install the SDK on any such additional computers, servers, or hard drives, at which point Licensor will inform Licensee of the applicable Distribution License Fees.
It is Licensee’s responsibility to comply with the agreed upon Distribution License and the applicable Distribution License Fees. Should Licensee exceed the allowed Distribution License, Licensee must promptly correct the overage. If the matter is not corrected, additional Distribution License Fees will apply and be promptly paid by Licensee.
The Purchase Order(s) shall specify any or all of (i) the applicable license fees, (ii) the number of authorized computers, servers, and/or hard drives, and (iii) the payment terms.
Except as set forth above, Licensee may not (1) modify, distribute, sell, lease, rent, lend, or sublicense the SDK (or any copy or portion thereof), (2) pre-install or embed applications created using this SDK on third-party devices, (3) use the SDK to create, design, or develop anything other than Licensee Product(s), (4) make any more copies of the SDK than are reasonably necessary for the authorized use, (5) modify, create derivative works of, reverse engineer, reverse compile, disassemble the SDK, or otherwise seek to ascertain the source code, except and only to the extent that applicable law expressly permits, despite this limitation (in which case Licensee shall provide Licensor with prior notification and the opportunity to respond), or (6) use the SDK in any manner to (a) circumvent any technical or licensing restrictions of Licensor products, (b) upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware, (c) use SDK or any of its features to invade the privacy of any person or otherwise violate any law.
Licensor and its representatives may examine all books, records and files maintained by Licensee pertaining to this Agreement and Licensee’s activities with the SDK. Licensor may perform any audit or investigations relating to the Licensee’s activities regarding the SDK and this Agreement remotely, and/or at Licensee’s office. In addition, Licensee acknowledges that the SDK contains internal controls and mechanisms to ensure the Licensee’s proper use of the SDK. These internal controls and mechanisms include online validations of the number of licenses deployed, and offline network verifications and protections. Should Licensor discover inaccurate records disclosed or maintained by Licensee, additional License Fees may apply, which Licensee shall promptly pay.
Licensee may, from time to time, provide feedback to Licensor concerning the functionality and performance of the SDK or Licensor products including, without limitation, identifying potential errors and improvements (“Feedback”). Feedback that is provided by Licensee to Licensor in connection with this Agreement may be used by Licensor and its affiliates to improve or enhance its products and, accordingly, Licensor and its affiliates shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works, permit distribution and otherwise exploit such Feedback without restriction.
Subject to the terms and conditions of this Agreement, during the twelve (12) month period following the first effective date of this Agreement, Licensor shall provide technical support services to the Licensee in accordance with Licensor’s support guidelines then in effect for the SDK. Prior to making any support request to Licensor, Licensee shall first use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect on its own without any escalation to Licensor. Thereafter, Licensee may submit a written request for technical support via email to Licensee. Licensee shall provide support services to End-Users at its own expense.
This Agreement shall continue as long as Licensee is in compliance with the terms specified herein or until otherwise terminated. Either party may terminate this Agreement upon thirty days written notice if the other party is in material breach of any term of this Agreement. Licensee agrees, upon termination, to immediately destroy all copies of the SDK within the Licensee’s possession or control, including any and all versions of the SDK (or components or code from the SDK) contained in all Licensee Products. The following Sections survive any termination of this Agreement: Sections 6, 8, 9, 10, 11, 12, and 13.
The SDK is licensed, not sold. Licensor reserves all other rights not granted herein. The parties acknowledge that, as between the parties, (a) Licensor or its licensors retain complete ownership of all Intellectual Property Rights in and to the SDK and (b) Licensee or its licensors retain complete ownership of all Intellectual Property Rights in the Licensee Product(s) (subject to Licensor’s underlying ownership of the Intellectual Property Rights in and to the SDK). Nothing in this Agreement will be construed to transfer or assign any Intellectual Property Rights of either party to the other. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights.
10. DISCLAIMER OF WARRANTIES & LIABILITY.
THE SDK IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO THE SDK OR THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. LICENSOR’S TOTAL LIABILITY RELATING TO THE SDK OR THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE AMOUNT PAID BY THE LICENSEE TO THE LICENSOR DURING THE TWELVE (12) MONTH PERIOD PROCEEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Licensee shall defend, indemnify, and hold harmless Licensor and its affiliates and their respective directors, officers, employees, contractors, agents, and end users (“Indemnified Parties”) against any third party claim, suit, or proceeding (“Claim”) and any liability, damage, loss, cost, and expenses (including attorney’s fees) arising from the Claim (“Damages”) threatened or brought against any Indemnified Party alleging that any Licensee Product infringes (including contributory infringement) or misappropriates any third party intellectual property right. The Indemnified Party shall provide Licensee written notice of any Claim within a reasonable time after the Indemnified Party receives written notice of the Claim. The Indemnified Party’s failure to provide timely written notice will not excuse Licensee’s obligation under this Agreement unless lack of actual notice of the Claim has a substantially adverse effect on Licensee’s ability to defend the Claim. The Indemnified Party must allow Licensee sole control of the defense. Licensee shall not settle any Claim, and no settlement of a Claim will be binding on the Indemnified Party, without its prior written consent, which will not be unreasonably withheld or delayed.
“Confidential Information” means information or material provided the discloser to the recipient that is in tangible form and labeled “confidential” or the like, or, information, which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) information regarding Licensor fees, pricing, products, and marketing plans; (b) non-public materials relating to the SDK or Licensor products, and (c) the terms and conditions of this Agreement. Licensee shall keep all Confidential Information it receives confidential using the same protections that it applies to its own information of like importance, but in no event less than reasonable care, and may use such information solely for the purposes contemplated by this Agreement or as otherwise agreed in writing. Confidential Information may be disclosed solely to employees, contractors and consultants who have a legitimate need to know the Confidential Information and are bound to confidentiality restrictions substantially equivalent to this Section 12 and who are not working on Licensee products or services that are competitive with Licensor’s and its affiliates’ products and services. This Section 12 will not apply to information that: (a) was rightfully in possession of the recipient prior to receipt of such Confidential Information from the discloser; (b) is or becomes a matter of public knowledge through no fault of the party receiving such Confidential Information hereunder; (c) is rightfully received from a third party without a duty of confidentiality; (d) is independently developed by recipient without breach of any confidentiality obligations; or (e) is disclosed by recipient with discloser’s written approval; (f) the recipient is required to disclose by applicable law or court order, or (g) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction. In addition, recipient will be allowed to disclose (i) discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that recipient notifies discloser of such required disclosure promptly and in writing and cooperates with discloser, at discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure, (ii) the terms and conditions of this Agreement in confidence in connection with an actual or proposed merger, acquisition, or similar transaction. The parties acknowledge that breach of this Section 12 may cause irreparable damage to the discloser for which monetary damages will be an inadequate remedy. Accordingly, the discloser will be entitled to seek and obtain injunctive and any relief (legal or equitable) to restrain any breach or anticipated breach of this Section 12. No party has the right to issue media releases, public announcements or public disclosures relating to the existence of or the terms of this Agreement or use the other party’s name in any promotional or marketing material (other than as required by legal, accounting or regulatory requirements).
13.1 Governing Law/Venue.
This Agreement, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of the United Arabic Emirates (UAE), without regard to its conflict or choice of law principles. The United States Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods (CISG or also known as the Vienna Convention) shall not apply. If either the Licensor or the Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
This Agreement may not be assigned in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party. Notwithstanding the forgoing, Licensor may assign this Agreement in connection with merger, a corporate reorganization, or the transfer of substantially all of the assets of the business to which this Agreement relates. This Agreement will bind and inure to the benefit of the parties and their permitted assigns.
13.3 Entire Agreement.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes entirely all written or oral agreements previously existing between the parties with respect to that subject matter. Each of the parties acknowledges that it is not entering into this Agreement on the basis of any representations other than those representations contained expressly in this Agreement. Any modifications of this Agreement must be in writing and signed by both parties hereto. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the parties agree to comply with the provision to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement remain in full force and effect.
13.4 Export Control.
Licensee acknowledges that the SDK is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. Licensee represents, warrants and covenants that (1) Licensee is not, and is not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) Licensee will not permit the SDK to be used for any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
13.5 Data Privacy.
Licensee agrees that Licensor may periodically collect, process and store technical and related information about Licensee’s device, system, application, peripherals and Licensee’s use of the SDK, including without limitation: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plugins and software development kits, the successful installation and launch of SDK, and SDK usage statistics (collectively, “Technical Data”). Licensor will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of Updates, and the development of Licensor products and services.
13.6 Equitable Relief.
The parties agree that a breach of this Agreement would cause irreparable injury to Licensor for which there may be no adequate remedy at law. Accordingly, Licensor shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.
13.7 Force Majeure.
Licensor shall not be liable in any respect for failures to perform hereunder due wholly or substantially to the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, armed hostilities, riots and other unavoidable events beyond the control of Licensor, and the time for performance of obligations hereunder by Licensor or its suppliers subject to such event shall be extended for the duration of such event.
13.8 Relationship of Parties.
The relationship of the parties during the term of this Agreement is that of independent third parties. Neither party has, nor no party has the right to represent that it has any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name. Nothing stated in this Agreement may be construed as creating a partnership between the parties, creating the relationships of employer/employee, franchiser/franchisee, or principal/agent between the parties.
Notices to either party must be in writing and must be delivered in person, by United States mail, first-class certified mail, postage prepaid, return receipt requested, or by an express courier service addressed as stated at the beginning of this Agreement.
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