knowles portal confidentiality and EVALUATION License Agreement
READ THE FOLLOWING AGREEMENT CAREFULLY! THE USER OF THE KNOWLES PORTAL AND SOFTWARE DEVELOPMENT KIT OR SDK (AS DEFINED HEREIN) MUST ACCEPT THIS AGREEMENT BEFORE ANY USE OF CONFIDENTIAL PORTAL INFORMATION INCLUDING THE SDK. BY DOWNLOADING OR OTHERWISE ACCESSING ANY CONFIDENTIAL INFORMATION FROM THE KNOWLES PORTAL, OR BY CLICKING TO ACCEPT THIS AGREEMENT, THE USER HEREBY AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS PORTAL AGREEMENT SHALL APPLY TO ALL ITEMS ACCESSED AND SHALL SUPERSEDE ANY PRIOR SDK AGREEMENT WITH KNOWLES UNLESS YOU HAVE NEGOTIATED A SEPARATE ARRANGEMENT WITH KNOWLES. THE USER SHOULD NOT ACCEPT THIS AGREEMENT OR USE THE KNOWLES PORTAL OR SDK IF HE/SHE OR HIS/HER COMPANY IS BARRED FROM USE OF THE SDK UNDER THE LAWS OR REGULATIONS OF THE UNITED STATES OR ANY OTHER COUNTRY.
THE PERSON ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE IS OF THE LEGAL AGE OF MAJORITY IN THE COUNTRY OR STATE IN WHICH HE/SHE RESIDES (TYPICALLY 18). IF THE USER IS AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF HIS/HER EMPLOYER OR ANOTHER ENTITY, THE USER REPRESENTS AND WARRANTS THAT HE/SHE HAS FULL LEGAL AUTHORITY TO BIND SUCH EMPLOYER OR SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH LEGAL AUTHORITY, YOU MAY NOT ACCEPT THE AGREEMENT OR USE THE SDK ON BEHALF OF YOUR EMPLOYER OR ANY OTHER ENTITY.
(a) Evaluation License for Knowles Products. Subject to Licensee’s compliance with the terms and conditions of this Agreement, and subject to any rights of third parties as provided in Section 2(c), Knowles grants to Licensee a limited, non-exclusive, non-transferable, royalty-free, revocable license and right to: (1) install, use, and copy the SDK to develop, test and operate Licensee Products; (2) use any Hardware for evaluation in connection with the SDK; and (3) use the Documentation for evaluation in connection with the SDK. Except as expressly provided in the Documentation, Licensee shall not alter the Knowles Products as provided by Knowles, including any software (source code or object code), tools, libraries, header files, any other SDK component part, or the Documentation, and Licensee shall not attempt to circumvent or work around any protections implemented by Knowles to prevent such modification. Notwithstanding the foregoing, Licensee shall have the right to alter any Modifiable Files for purposes of development and evaluation.
(b) Licensee’s Developments. This Agreement is designed solely for Knowles to provide items to Licensee. Knowles does not encourage or expect Licensee to provide code or Licensee Products to Knowles. However, to the extent Licensee provides Knowles access to any of Licensee Products (whether complete or still under development), Licensee agrees Knowles and its personnel shall now and in the future be free to use and employ Knowles’ and its personnel’s general skills, know-how and expertise, and to use, disclose, and employ any generalized ideas and concepts learned in connection with this Agreement or such access to Licensee Products hereunder, so long as Knowles or Knowles’ personnel acquire and employ such information without disclosure of any Licensee’s Confidential Information.
(a) Reserved Rights. Except as specifically set forth herein, Knowles and its licensors retain all right, title, and interest, including all Proprietary Rights, relating to or embodied in the Knowles Products, including without limitation, all code, libraries, tools, software, and environments relating to the SDK and Documentation. Licensee acknowledges the Knowles Products contain copyrighted information, which is unpublished and embodies valuable trade secrets proprietary to Knowles and/or Knowles’ licensors. Licensee agrees to assist Knowles, upon Knowles’ request, and at Knowles’ expense, to protect and enforce Knowles’ and its licensors’ Proprietary Rights.
(b) Non-Granted Rights. Licensee obtains no rights under this Agreement to distribute or sell Licensee Products. Neither the delivery of the Knowles Products or any other materials to Licensee or any third party, nor any other provision of this Agreement, will be deemed or construed to grant to Licensee or any third party, whether expressly, by implication or by way of estoppel or otherwise, any right or license (and no authority to infringe, or immunity from infringement liability, will be deemed to arise or exist as a matter of law) under (i) any patents of Knowles or any of its Affiliates, (ii) any Proprietary Rights of Knowles or its Affiliates covering or relating to any product or invention other than the SDK or (iii) any combination of the Knowles Products with any other product or invention. Neither Licensee nor any of Licensee’s Affiliates will contend that it has obtained any right, license, or immunity from suit with respect to any patents of Knowles or its Affiliates under or as a result of this Agreement (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). Licensee shall not make unreasonable numbers of copies, distribute, host, sell, sublicense, or otherwise provide access to (in part or in whole) the Knowles Products. Licensee shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any precompiled software related to the operation of the SDK. Licensee agrees to not remove, obscure, or alter any proprietary notices (including copyright and trademark notices) affixed to or contained within any Knowles Products, including any portions of the SDK or Documentation included in Licensee Products.
(c) Third Party Rights. In providing the Knowles Products, Licensee acknowledges Third Party Materials (including open source) are incorporated into the Knowles Products, including the materials identified in the description of the applicable SDK or component thereof. All use of Third Party Materials shall be subject to the license terms of such third-party licensor, and Licensee agrees the restrictions on Licensee’s use of and rights to the Knowles Products extend to and protect such Third Party Materials. The Knowles Products may contain open source software components, each licensed under the applicable open source software license agreement. The open source software contained in the Knowles Products may be identified in the comments in the applicable source code file(s) and/or file header(s) provided with or otherwise associated with the SDK or in the Documentation. With respect to each item of open source software, to the extent there are any conflicts between any terms of this Agreement and any terms of the respective open source software license, the terms of the respective open source software license will apply. In using the Knowles Products, if Licensee uses the SDK to either execute applications developed by a third party or access data, content, or other resources provided by a third party, Licensee is solely responsible for those applications, data, content, or resources. Knowles shall not be responsible for any loss, damage, cost, or expense Licensee may experience as a result of Licensee’s use or access to any such Third Party Materials.
3. Delivery. Unless Knowles provides otherwise, Knowles will make the SDK and Documentation available electronically in a format determined by Knowles. Any and all Hardware will be shipped pursuant to the terms and by the shippers determined by Knowles in its sole discretion.
4. Representations and Warranties. Licensee represents and warrants that (i) Licensee has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval; (ii) this Agreement constitutes legal, valid and binding obligations on Licensee; (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract, lease or license which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby; (iv) Licensee has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances; and (v) Licensee shall comply with all federal, state, local and, if applicable, foreign laws, rules and regulations.
5. Term and Termination.
(a) Effective Date. This Agreement is effective upon acceptance by Licensee and will continue to apply until terminated by either Licensee or Knowles.
(b) Termination. Either Party shall have the right to terminate this Agreement at any time upon written notice to the other Party.
(c) Effect of Termination. In the event this Agreement is terminated for any reason, Licensee must delete and destroy all copies of the SDK, Documentation and all related information in Licensee’s possession or control within ten (10) days of the termination date, and Licensee shall send certification of such deletion and destruction pursuant to the notice provisions herein. Furthermore Licensee’s licenses and rights to use the Knowles Products (including any and all Third Party Materials) granted to Licensee under this Agreement shall terminate. Upon Knowles’s request, Licensee shall return any and all Hardware to Knowles’ specified destination.
(d) Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, Sections 2, 4, 5(b)-5(d), and 6-14.
(a) Each Party as Discloser may disclose Confidential Information to the other Party as Recipient. In each such case, the Recipient shall hold such Confidential Information in confidence and shall not disclose such Confidential Information except to a Party’s Affiliates, employees or agents who have a need to know such Confidential Information in order to perform such Party’s obligations under this Agreement. Recipient agrees to take all reasonable measures to prevent disclosure of Confidential Information to others. Knowles’ Confidential Information includes the SDK and all Documentation marked “confidential” that Licensee downloads from the Knowles Portal. Neither Party shall have any rights in the other Party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination of this Agreement or the request of the Discloser.
(b) Termination of this Agreement shall not release the Recipient from any of the obligations of confidentiality and non-use set out herein. Such obligations shall survive for a term of 5 years from the date of disclosure of the Confidential Information.
(c) Notwithstanding any other term hereof, the term “Confidential Information” shall not include information that: (a) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (b) lawfully becomes available to Recipient on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (c) is generally available to the public other than as a result of a breach of this Agreement by Recipient or its representative(s); or (d) is subsequently and independently developed by employees, consultants or agents of the Recipient without reference to the Confidential Information disclosed hereunder. In addition, a Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other Party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party of the request prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
7. Indemnity. Licensee agrees to defend, indemnify and hold Knowles and its Affiliates and their respective directors, officers, employees, and agents harmless from any and all Claims on account of (A) any breach by Licensee of any covenant, representation or warranty contained in this Agreement, (B) any use, reproduction or distribution of any Knowles Product, including any Third Party Materials, as used, modified or integrated by Licensee, including any Claims of infringement of any patent, copyright, trademark, trade secret, or other intellectual property right of any third parties arising in any jurisdiction anywhere in the world except and solely to the extent such infringement is caused by the unmodified and authorized use of the Knowles Products, and/or (C) the download, distribution, installation, storage, execution, use or transfer of Licensee Products by any person or entity, including any infringement arising therefrom of any patent, copyright, trademark, trade secret, or other intellectual property right of any third parties arising in any jurisdiction anywhere in the world.
8. Disclaimers and Limitations of Liability.
(a) Disclaimer of Warranties. LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT LICENSEE’S USE OF THE KNOWLES PRODUCTS IS AT LICENSEE’S SOLE RISK AND THAT THE KNOWLES PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM KNOWLES. LICENSEE’S USE OF THE KNOWLES PRODUCTS AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE KNOWLES PORTAL IS AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. KNOWLES EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Knowles DOES not and will not covenant, represent or warrant to Licensee THE performance by Knowles of any support, maintenance, or technical assistance for Licensee’s use of ANY KNOWLES PRODUCT PROVIDED HEREUNDER.
(b) Third Party Software. LICENSEE ACKNOWLEDGES AND AGREES THAT THE USE OF ANY THIRD PARTY MATERIALS SHALL BE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT UNLESS OTHERWISE SPECIFIED IN THE LICENSE AGREEMENT APPLICABLE TO SUCH THIRD PARTY MATERIALS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, TO THE EXTENT ALLOWED BY APPLICABLE LAWS, WITH RESPECT TO ANY THIRD PARTY MATERIALS.
(c) Limitation of Liability. IN NO EVENT SHALL KNOWLES BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR DIRECT DAMAGES OR THE LIKE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EACH SUCH POSSIBLE DAMAGE BEING HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER KNOWLES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER; IN SUCH EVENT, KNOWLES’ AGGREGATE LIABILITY TO LICENSEE FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, PROCEEDINGS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED FIFTY US DOLLARS ($50.00).
9. Export Restrictions. The Knowles Products are subject to United States export laws and regulations. Licensee shall comply with all domestic and international export laws and regulations that apply to the Knowles Products, including restrictions on destinations, end users, and end use. Licensee assures that Licensee and Licensee’s Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, “export”) any part or whole of the Knowles Products or direct product thereof to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation. Licensee shall not transfer any part or whole of the Knowles Products to any entity listed on any of the denied persons or entities lists or specially designated nationals lists maintained under said regulations without appropriate US government authorization to the extent required by regulation. Licensee acknowledges that other countries have trade laws pertaining to import, use, export or distribution of hardware, software, source code, or other technology, and that compliance with same is Licensee’s responsibility.
10. Government End Users. If Licensee is acting on behalf of an agency or instrumentality of the US government, the Knowles Products, as applicable, are “commercial computer software” and “commercial computer software documentation” developed exclusively at private expense by Knowles. Pursuant to 48 CFR § 12.212 (aka FAR 12.212) or 48 CFR § 227.7202 (aka DFARS 227.7202) and their successors, as applicable, use, reproduction and disclosure of the Knowles Products are governed by the terms of this Agreement.
11. Equitable Relief. In the event of breach of any of the provisions of this Agreement by Licensee, Knowles will be entitled to seek equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or equity.
12. Jurisdiction. This Agreement and all applicable Schedule(s) shall be interpreted and enforced in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Licensee agrees that any legal action involving this Agreement in any way will be instituted in a court of competent jurisdiction located in Santa Clara County, California, and Licensee consents to jurisdiction of the state or federal courts in the State of California over Licensee’s person for purpose of such legal action. Dispute Resolution for Licensees Located Solely in the People’s Republic of China. For purposes of litigating any dispute that arises from this Agreement (including its existence, validity or termination), when the Licensee is located solely in the People’s Republic of China, such dispute shall be governed by the laws of the People’s Republic of China, without regard to any choice-of-law provisions. Any such dispute shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) for arbitration which shall be conducted in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitration award is final and binding upon both parties. In any arbitration arising out of or relating to this Agreement, the prevailing party or parties shall be entitled to seek reasonable attorneys’ fees and arbitration costs and expenses.
13. Miscellaneous. This Agreement and all applicable Schedule(s) are the exclusive statement of the Parties with respect to the subject matter thereof and supersede any prior or contemporaneous communications; and may not be amended except in writing executed by the Parties. If any provision of this Agreement is unenforceable, the remaining provisions shall remain in effect. No waiver of the terms hereof (whether by course of dealing or otherwise) shall be effective unless in writing signed by the Party to be charged therewith. This Agreement may be executed in counterparts (by original, electronic or facsimile signature), which together will constitute a single agreement. The remedies set forth herein are in addition to and not in lieu of the other rights and remedies of the Parties at law or in equity. Licensee and Knowles are acting under this Agreement as independent contractors. Licensee shall not be considered or deemed to be an agent, employee, joint venture or partner of Knowles. Licensee’s personnel shall not be considered or deemed employees of Knowles, and Licensee shall be responsible for the conduct of Licensee’s personnel. Licensee agrees not to directly solicit the employment of any employee or contractor of Knowles that is directly involved in the performance of Knowles’ obligations hereunder during the term of this Agreement and for a one (1) year period after termination hereof. This Agreement shall not be assigned or transferred by a Party hereto without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Knowles shall have the right to freely assign this Agreement to an Affiliate or to an acquirer of all or part of Knowles’ business or assets, whether by merger or acquisition. This Agreement is for the sole benefit of Licensee and Knowles and is not intended to, nor shall it be construed to, create any right or confer any benefit on or against any third party. Except with respect to Licensee’s obligations regarding any of Knowles’ proprietary notices or markings, Licensee shall not use, or nor allow to be used, Knowles’ name, logo, trademarks or service marks (including, but not limited to, use of Knowles’ name as a customer reference) without the prior written approval of Knowles. Licensee will not make any public announcement of this Agreement or the relationship contemplated hereunder (including, but not limited to, any press release, client list, advertisement or any promotional material) without the prior written approval of Knowles. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, or three (3) days after being sent by prepaid, certified or registered U.S. mail to the address of the Party to be noticed. Notice for Knowles: Knowles Electronics, Attn: Law Department, 1151 Maplewood Drive, Itasca, IL 60143 USA. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. If an ambiguity or question of intent or interpretation arises, no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Unless the context requires otherwise, all words in the plural number extend to and include the singular, and all words in any gender extend to and include all genders.
(a) “Affiliate” means any person or entity which directly, or indirectly through one or more intermediaries, owns or controls, is owned or controlled by, or is under common control or ownership with, Licensee or Knowles, respectively, or their respective ultimate parent, where “control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
(b) “Agreement” means this Knowles Portal Confidentiality and Evaluation License Agreement between Licensee and Knowles.
(c) “Claim” means a claim, loss, injury, suit, demand, proceeding, liability, damage, cost, or expense, including without limitation reasonable attorneys’ fees and court costs.
(d) “Confidential Information” means confidential and/or proprietary information.
(e) “Discloser” means a Party disclosing Confidential Information.
(f) “Documentation” means the technical or other specifications and documentation related to the SDK provided by Knowles. All documents provided on the Knowles Portal are included within this definition.
(g) “Hardware” means the hardware evaluation boards, microprocessor development boards, or other boards provided by Knowles to Licensee.
(h) “Knowles Portal” means the website provided by Knowles for distribution of partner solutions (solutions.knowles.com).
(i) “Knowles Products” means the SDK, Documentation and Hardware, collectively.
(j) “Knowles” means Knowles Electronics, LLC.
(k) “Licensee Products” means the software (source code and object code) Licensee writes using the SDK or any one or more components thereof, such software being operable on one or more products manufactured by Knowles; and (2) any products, documentation, content, materials or derivative works thereof prepared by Licensee or on Licensee’s behalf for such software.
(l) “Licensee” means the individual or organization utilizing the SDK.
(m) “Modifiable Files” mean any library, file, tool or data identified in the Documentation as permissible for Licensee to alter when using the SDK.
(n) “Party” or “Parties” means Licensee, Knowles or both Licensee and Knowles, as applicable.
(o) “Proprietary Rights” means any rights, title, or interest in any software (source code or object code), hardware, product, and/or process and any corresponding documentation under patent law, copyright law, trade secret law, trademark law, and any other law protecting proprietary rights.
(p) “Recipient” means a Party receiving Confidential Information.
(q) “SDK” means the software (source code and object code), applications, compiler, header files, sample code, evaluation modules, tools, debugging utilities, libraries, application programming interfaces/APIs, data, files, and related materials provided by Knowles in connection with Licensee’s development of products and programs.
(r) “Third Party Materials” means any hardware, software, applications, libraries, tools, files, data and other related material licensed from third parties (e.g., open source software, proprietary software) and provided by Knowles.