| SOFTWARE LICENSE AGREEMENT |
| |
| Unless you and InvenSense Corporation ("InvenSense") execute a separate written |
| software license agreement governing use of the accompanying software, this |
| software is licensed to you under the terms of this Software License |
| Agreement ("Agreement"). |
| |
| ANY USE, REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE CONSTITUTES YOUR |
| ACCEPTANCE OF THIS AGREEMENT. |
| |
| 1. DEFINITIONS. |
| |
| 1.1. "InvenSense Product" means any of the proprietary integrated circuit |
| product(s) sold by InvenSense with which the Software was designed to be used, |
| or their successors. |
| |
| 1.2. "Licensee" means you or if you are accepting on behalf of an entity |
| then the entity and its affiliates exercising rights under, and complying |
| with all of the terms of this Agreement. |
| |
| 1.3. "Software" shall mean that software made available by InvenSense to |
| Licensee in binary code form with this Agreement. |
| |
| 2. LICENSE GRANT; OWNERSHIP |
| |
| 2.1. License Grants. Subject to the terms and conditions of this Agreement, |
| InvenSense hereby grants to Licensee a non-exclusive, non-transferable, |
| royalty-free license (i) to use and integrate the Software in conjunction |
| with any other software; and (ii) to reproduce and distribute the Software |
| complete, unmodified and only for use with a InvenSense Product. |
| |
| 2.2. Restriction on Modification. If and to the extent that the Software is |
| designed to be compliant with any published communications standard |
| (including, without limitation, DOCSIS, HomePNA, IEEE, and ITU standards), |
| Licensee may not make any modifications to the Software that would cause the |
| Software or the accompanying InvenSense Products to be incompatible with such |
| standard. |
| |
| 2.3. Restriction on Distribution. Licensee shall only distribute the |
| Software (a) under the terms of this Agreement and a copy of this Agreement |
| accompanies such distribution, and (b) agrees to defend and indemnify |
| InvenSense and its licensors from and against any damages, costs, liabilities, |
| settlement amounts and/or expenses (including attorneys' fees) incurred in |
| connection with any claim, lawsuit or action by any third party that arises |
| or results from the use or distribution of any and all Software by the |
| Licensee except as contemplated herein. |
| |
| 2.4. Proprietary Notices. Licensee shall not remove, efface or obscure any |
| copyright or trademark notices from the Software. Licensee shall include |
| reproductions of the InvenSense copyright notice with each copy of the |
| Software, except where such Software is embedded in a manner not readily |
| accessible to the end user. Licensee acknowledges that any symbols, |
| trademarks, tradenames, and service marks adopted by InvenSense to identify the |
| Software belong to InvenSense and that Licensee shall have no rights therein. |
| |
| 2.5. Ownership. InvenSense shall retain all right, title and interest, |
| including all intellectual property rights, in and to the Software. Licensee |
| hereby covenants that it will not assert any claim that the Software created |
| by or for InvenSense infringe any intellectual property right owned or |
| controlled by Licensee. |
| |
| 2.6. No Other Rights Granted; Restrictions. Apart from the license rights |
| expressly set forth in this Agreement, InvenSense does not grant and Licensee |
| does not receive any ownership right, title or interest nor any security |
| interest or other interest in any intellectual property rights relating to |
| the Software, nor in any copy of any part of the foregoing. No license is |
| granted to Licensee in any human readable code of the Software (source code). |
| Licensee shall not (i) use, license, sell or otherwise distribute the |
| Software except as provided in this Agreement, (ii) attempt to reverse |
| engineer, decompile or disassemble any portion of the Software; or (iii) use |
| the Software or other material in violation of any applicable law or |
| regulation, including but not limited to any regulatory agency, such as FCC, |
| rules. |
| |
| 3. NO WARRANTY OR SUPPORT |
| |
| 3.1. No Warranty. THE SOFTWARE IS OFFERED "AS IS," AND INVENSENSE GRANTS AND |
| LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, |
| COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. INVENSENSE SPECIFICALLY |
| DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC |
| PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY UPGRADES TO OR |
| DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, INVENSENSE |
| GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT |
| INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS |
| THEREFROM INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR |
| RELIABILITY. |
| |
| 3.2. No Support. Nothing in this agreement shall obligate InvenSense to |
| provide any support for the Software. InvenSense may, but shall be under no |
| obligation to, correct any defects in the Software and/or provide updates to |
| licensees of the Software. Licensee shall make reasonable efforts to |
| promptly report to InvenSense any defects it finds in the Software, as an aid |
| to creating improved revisions of the Software. |
| |
| 3.3. Dangerous Applications. The Software is not designed, intended, or |
| certified for use in components of systems intended for the operation of |
| weapons, weapons systems, nuclear installations, means of mass |
| transportation, aviation, life-support computers or equipment (including |
| resuscitation equipment and surgical implants), pollution control, hazardous |
| substances management, or for any other dangerous application in which the |
| failure of the Software could create a situation where personal injury or |
| death may occur. Licensee understands that use of the Software in such |
| applications is fully at the risk of Licensee. |
| |
| 4. TERM AND TERMINATION |
| |
| 4.1. Termination. This Agreement will automatically terminate if Licensee |
| fails to comply with any of the terms and conditions hereof. In such event, |
| Licensee must destroy all copies of the Software and all of its component |
| parts. |
| |
| 4.2. Effect Of Termination. Upon any termination of this Agreement, the |
| rights and licenses granted to Licensee under this Agreement shall |
| immediately terminate. |
| |
| 4.3. Survival. The rights and obligations under this Agreement which by |
| their nature should survive termination will remain in effect after |
| expiration or termination of this Agreement. |
| |
| 5. CONFIDENTIALITY |
| |
| 5.1. Obligations. Licensee acknowledges and agrees that any documentation |
| relating to the Software, and any other information (if such other |
| information is identified as confidential or should be recognized as |
| confidential under the circumstances) provided to Licensee by InvenSense |
| hereunder (collectively, "Confidential Information") constitute the |
| confidential and proprietary information of InvenSense, and that Licensee's |
| protection thereof is an essential condition to Licensee's use and possession |
| of the Software. Licensee shall retain all Confidential Information in |
| strict confidence and not disclose it to any third party or use it in any way |
| except under a written agreement with terms and conditions at least as |
| protective as the terms of this Section. Licensee will exercise at least the |
| same amount of diligence in preserving the secrecy of the Confidential |
| Information as it uses in preserving the secrecy of its own most valuable |
| confidential information, but in no event less than reasonable diligence. |
| Information shall not be considered Confidential Information if and to the |
| extent that it: (i) was in the public domain at the time it was disclosed or |
| has entered the public domain through no fault of Licensee; (ii) was known to |
| Licensee, without restriction, at the time of disclosure as proven by the |
| files of Licensee in existence at the time of disclosure; or (iii) becomes |
| known to Licensee, without restriction, from a source other than InvenSense |
| without breach of this Agreement by Licensee and otherwise not in violation |
| of InvenSense's rights. |
| |
| 5.2. Return of Confidential Information. Notwithstanding the foregoing, all |
| documents and other tangible objects containing or representing InvenSense |
| Confidential Information and all copies thereof which are in the possession |
| of Licensee shall be and remain the property of InvenSense, and shall be |
| promptly returned to InvenSense upon written request by InvenSense or upon |
| termination of this Agreement. |
| |
| 6. LIMITATION OF LIABILITY |
| TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL INVENSENSE OR ANY OF |
| INVENSENSE'S LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, |
| SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF |
| LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR |
| OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS |
| OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH |
| DAMAGES. IN NO EVENT WILL INVENSENSE'S LIABILITY WHETHER IN CONTRACT, TORT |
| (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE FOR |
| SOFTWARE UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING |
| ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. |
| |
| 7. MISCELLANEOUS |
| |
| 7.1. Export Regulations. YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS |
| SUBJECT TO UNITED STATES AND OTHER APPLICABLE EXPORT-RELATED LAWS AND |
| REGULATIONS AND THAT YOU MAY NOT EXPORT, RE-EXPORT OR TRANSFER THE SOFTWARE |
| OR ANY DIRECT PRODUCT OF THE SOFTWARE EXCEPT AS PERMITTED UNDER THOSE LAWS. |
| WITHOUT LIMITING THE FOREGOING, EXPORT, RE-EXPORT OR TRANSFER OF THE SOFTWARE |
| TO CUBA, IRAN, NORTH KOREA, SUDAN AND SYRIA IS PROHIBITED. |
| |
| 7.2 Assignment. This Agreement shall be binding upon and inure to the |
| benefit of the parties and their respective successors and assigns, provided, |
| however that Licensee may not assign this Agreement or any rights or |
| obligation hereunder, directly or indirectly, by operation of law or |
| otherwise, without the prior written consent of InvenSense, and any such |
| attempted assignment shall be void. Notwithstanding the foregoing, Licensee |
| may assign this Agreement to a successor to all or substantially all of its |
| business or assets to which this Agreement relates that is not a competitor |
| of InvenSense. |
| |
| 7.3. Governing Law; Venue. This Agreement shall be governed by the laws of |
| California without regard to any conflict-of-laws rules, and the United |
| Nations Convention on Contracts for the International Sale of Goods is hereby |
| excluded. The sole jurisdiction and venue for actions related to the subject |
| matter hereof shall be the state and federal courts located in the County of |
| Orange, California, and both parties hereby consent to such jurisdiction and |
| venue. |
| |
| 7.4. Severability. All terms and provisions of this Agreement shall, if |
| possible, be construed in a manner which makes them valid, but in the event |
| any term or provision of this Agreement is found by a court of competent |
| jurisdiction to be illegal or unenforceable, the validity or enforceability |
| of the remainder of this Agreement shall not be affected if the illegal or |
| unenforceable provision does not materially affect the intent of this |
| Agreement. If the illegal or unenforceable provision materially affects the |
| intent of the parties to this Agreement, this Agreement shall become |
| terminated. |
| |
| 7.5. Equitable Relief. Licensee hereby acknowledges that its breach of this |
| Agreement would cause irreparable harm and significant injury to InvenSense |
| that may be difficult to ascertain and that a remedy at law would be |
| inadequate. Accordingly, Licensee agrees that InvenSense shall have the right |
| to seek and obtain immediate injunctive relief to enforce obligations under |
| the Agreement in addition to any other rights and remedies it may have. |
| |
| 7.6. Waiver. The waiver of, or failure to enforce, any breach or default |
| hereunder shall not constitute the waiver of any other or subsequent breach |
| or default. |
| |
| 7.7. Entire Agreement. This Agreement sets forth the entire Agreement |
| between the parties and supersedes any and all prior proposals, agreements |
| and representations between them, whether written or oral concerning the |
| Software. This Agreement may be changed only by mutual agreement of the |
| parties in writing. |
| |