HTC Open Sense SDK

IMPORTANT -- READ CAREFULLY BEFORE USING ANY SOFTWARE/HARDWARE/DOCUMENTATION: This License Agreement ("License Agreement") for a certain HTC product/document/software/hardware is a legal agreement between You (either an individual or an entity) and HTC Corporation and its third party suppliers and licensors (collectively "HTC") for all the relevant Materials (which includes components provided by suppliers and licensors to HTC) downloaded by or sent to you.

The parties hereby agree as follows:

  1. DEFINITIONS
    2.

    For the purpose of this Agreement, the capital terms used herein shall have the meaning as follows:

    1. “Software Development Kit” or “SDK” means the specific software, tools or technologies listed in the SDK Description Exhibit attached above or such other software, tools or technologies agreed in writing by HTC and notified to You from time to time.
    2. “Derivative Works” mean works that have been or will be developed or made by or for You that are based on the SDK, such as revisions, modifications, abridgements, condensations, expansions, collections, compilations and any other form in which such preexisting works may be recast, transformed or adapted.
    3. “Documentation” means any written materials related to the design, service and support and any modifications or enhancement to such SDK.

  2. SCOPE OF LICENSE
    3.

    HTC agrees to:

    1. grant to You, subject to Your compliance with the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited license to use the SDK: SDK Description to create, modify, and copy the software (the “Software”) for the sole purpose of running on the Android platform on compatible HTC Android-based devices (the “License”).
    2. grant to You a right to sub-license to your contractor if You (i) provides HTC prior written notice stating the name, address, place of incorporation and scope of the business of the potential sub-licensee; (ii) such potential sub-licensee agrees to be bound by the terms and conditions of this Agreement and (iii) is jointly and severally liable for any obligations or liabilities caused by such potential sub-licensee.

  3. YOUR OBLIGATIONS TO HTC
    4.

    You agree to:

    1. strictly comply with all of the terms and conditions of the License and this Agreement;
    2. limit access to the SDK only to your employees with a need for such access to perform your purpose and obligations under this Agreement and are advised of its confidential nature;
    3. keep HTC informed as to any problems encountered with the SDK and any resolutions arrived at for those problems, and to communicate promptly to HTC any and all modifications, design changes or improvements of the SDK suggested by any customer, employee or agent;
    4. grant to HTC and to HTC's licensees of the SDK, but solely in connection with licensed use or other exploitation of the SDK, or derivatives thereof, a limited non-exclusive, royalty-free, perpetual and world-wide license, under any Developer patent rights that contain claims covering or directed to the SDK, or derivatives thereof, and use of the SDK, or derivatives thereof, that are necessary to make, have made, use, sell, offer for sale, import, distribute and/or otherwise exploit the SDK;
    5. be solely responsible for costs and expenses incurred in connection with the distribution of the SDK and Application Programs. HTC shall have no obligation to provide maintenance, support, upgrades or new releases to You or to any distributee of the SDK or any Application Program;
    6. not to delete, alter, add to or fail to reproduce in and on any SDK copy and media the name of the SDK and any copyright or other notices appearing in or on any copy, media or master or package materials provided by HTC or which may be required by HTC at any time;
    7. not to reverse assemble, decompile Object Code, and/or reverse engineer or otherwise attempt to derive Source Code or the underlying ideas, algorithms, structure or organization of SDK;
    8. unless HTC gives a prior written approval, not to modify, create any Derivative Work from, or expose the SDK or make it subject to the GNU General Public License (“GPL”) or the equivalent where it was not already under such GPL or the equivalent, or make any copies of the SDK or copies of any portion thereof;
    9. not to use or distribute the SDK either on a standalone basis or with any product or technology other than the agreed HTC Product;
    10. to use Derivative Works only as embedded in (coupling with) HTC products, and such Derivative Works shall never be used or distributed by You (i) on a standalone basis for any commercial or profit making purpose, and/or (ii) for bundling or expanding SDK as your own development tool kit (or any ) for any kind of commercial distribution.
    11. to comply with all applicable export laws, restrictions, and regulations of United Nations, United States, Japan, European Union, or any foreign agency or authority;
    12. not use or register (or make any filing with respect to) any trademark, name or other designation of HTC anywhere in the world;
    13. not to contest anywhere in the world the use by or the authorization by HTC to use any trademark, name or other designations of HTC;
    14. not to sue or otherwise assert your proprietary rights against HTC and other licensees of the SDK for infringement of any Derivative Works made from the SDK; and
    15. if applicable not to cancel, decrease, delay or terminate any purchase order or the product supply agreement signed between HTC and You for any reason related to, in connection with or resulting from the use or development based on SDK under this Agreement. (You understand this sentence is provided as an example for clarification purpose and shall not be considered as complete.)

  4. LEGAL FORMALITIES
    5.
    1. Warranty Disclaimer

      2. You acknowledge the SDK and License is provided “AS IS” and HTC makes no warranty regarding non-interruption of the use or freedom from bugs. Neither HTC nor its licensors are responsible for providing any bug fixes, technical supports, upgrades, or updates of the SDK.

      NEITHER HTC NOR ITS LICENSOR MAKE ANY WARRANTIES TO ANY PERSON WITH RESPECT TO THE SDK OR ANY SERVICES OR LICENSES AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

    2. Problems with the SDK

      3. HTC will not provide service of the SDK to You or your customers who receive the HTC Product. Technical support to your customers will be provided directly by You. HTC will provide mutually agreed upon levels of technical support for the SDK on terms that will be mutually agreed upon by the parties.

    3. Terms and Cancellation of this Agreement

      4. This Agreement is effective from the first date You download the SDK. You may terminate this Agreement at any time by permanently deleting or destroying at your own costs, the SDK and all backup copies, and all related materials provided by HTC. Your end-user rights automatically and immediately terminate without notice from HTC if you fail to comply with any provision of this Agreement. In such an event, you must immediately delete or destroy, or return at your own cost, the SDK, all backup copies, and all related material.

    4. Changes to Agreement

      5. This document contains the entire agreement between HTC and You. Any amendment or modification to this Agreement must be made in writing and signed by both parties.

    5. Non-Waiver

      6. Each party’s failure to require the other party’s performance of any provision of this Agreement shall in no way affect the right of that party to later enforce such provision.

    6. Non-Assignability

      7. This Agreement, and the rights and obligations hereunder, are not assignable or transferable without the prior written consent of the other party.

    7. Force Majeure

      8. Neither party shall be liable for service interruptions, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, acts of God, war and threat of imminent war, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, acts or omissions of third parties, or any other cause beyond the parties’ reasonable control.

    8. Indemnification

      9. Subject to this Agreement, You shall defend, indemnify and hold HTC harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with your breach of the Agreement, or any claims, demands, suits or proceedings (“Claims”) made or brought against HTC by a third party alleging that the Derivative Works, or HTC's use of your software, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that HTC (a) promptly gives written notice of the Claim to You; (b) gives You sole control of the defense and settlement of the Claim subject to You giving HTC timely reports of the most updated status on such defends or settlements, provided that You may not settle or defend any Claim unless it unconditionally releases HTC of all liability; and (c) provides to You, at your cost, all reasonable assistance.

    9. Liability Limitation

      10. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER HTC NOR ITS LICENSORS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE LICENSE FEES PAID TO HTC HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (II) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT OR LOSS OF DATA OR (III) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES OR (IV) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE.

    10. Proprietary Rights

      11. HTC and its licensors shall at all times be and remain the sole proprietor and owner of all versions of the SDK (in all software, firmware, hardware and user materials that constitute the SDK), along with any and all the rights, title and interest, including without limitation, copyrights, trademarks, patents, trade secrets, sample code, and any components thereof, and other intellectual property rights to all of the SDK and its associated documentation and the derivatives thereof; and You shall not at any time be deemed to have acquired any right of whatever nature in and to the SDK, except to the licensed rights granted under the License of this Agreement.
      You agree not to interfere with or cause any third party to interfere with HTC’s intellectual property rights. In the event You are in violation of this Section, You agrees that HTC shall be entitled to immediate injunctive relief and damages.

      You acknowledge and agree that those techniques, algorithms, and processes contained in the SDK which have been developed, acquired, or licensed by HTC, or any modification or extraction thereof, constitute trade secrets of HTC or its licensors, and You agree that they will be used by You only in accordance with the terms of this Agreement. You shall, by all necessary means, protect the proprietary rights of HTC in the SDK and the Application Programs, including without limitation, securing, and/or maintaining employee confidentiality agreements, security access to the SDK, password protection, numbered copies, and all legal and equitable remedies available.

    11. Confidentiality

      12. Either party agrees that all information provided by the other party (“Confidential Information”) (“Disclosing Party”) hereunder shall be deemed Confidential Information, and not to disclose any Confidential Information to any third parties without a prior written consent from the Disclosing Party.

      Either party agrees to use the same degree of care to prevent disclosure of the Confidential Information that has been used to safeguard its own most valuable proprietary information, which shall not be less than a reasonable degree of care.

      The obligations in this Section shall not apply to any information which (a) was in the public domain at the time that it was disclosed or (b) enters the public domain other than by breach of this Agreement or (c) it was developed by employees or agents of the receiving party independently of and without reference to any information communicated to Disclosing Party or (d) is required to be disclosed by administrative or judicial action; provided, however, that the receiving Party shall, immediately after receiving notice of such action, notify Disclosing Party of such action to give Disclosing Party the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence as herein provided or (e) is approved for release by written authorization of Disclosing Party.

      The receiving party shall bear the burden of proof with respect to establishing that any Confidential Information falls within the above-mentioned exceptions. Upon termination of this Agreement, the Confidential Information shall survive for the period of three (3) years from the effective date of disclosure of the Confidential Information and the receiving party shall immediately destroy or return all master copies of the SDK and all Confidential Information and shall certify in writing to Disclosing Party that all such has been returned or destroyed. Licensee may retain necessary copies of SDK solely for the purpose of providing the continued technical support for any copy of the HTC Product properly distributed prior to the expiration or termination of this Agreement.

      Nevertheless, You shall keep the SDK and Documentation confidential in perpetuity.

    12. Governing Law; Arbitration

      13. This Agreement shall be governed in accordance with the laws of the state of Washington, U.S.A.

      Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the “Arbitration Date”), shall be finally settled by arbitration in the state of Washington, by at least three commercial arbitrators with substantial experience in resolving complex commercial contract disputes and in the Software industry.
      The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered shall be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.

      Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrators, provided that a permanent injunction and damages shall only be awarded by the arbitrators. For all purposes of this Section 12, the parties consent to exclusive jurisdiction and venue in the King County District Court located in the state of Washington, U.S.A.