INVENSENSE EMBEDDED MOTIONAPPS™ SOFTWARE LICENSE AGREEMENT

invensense-license.txt

INVENSENSE EMBEDDED MOTIONAPPS™ SOFTWARE LICENSE AGREEMENT

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE PROVIDED UNDER THIS AGREEMENT. This Software License Agreement (“Agreement”) is a binding legal agreement between InvenSense, Inc. located at 1197 Borregas Ave, Sunnyvale, CA 94089 ( “InvenSense”) and you (both the individual installing the Software and any single legal entity on behalf of which such individual is acting) (“Licensee”). By selecting “I ACCEPT” below, or by downloading, installing, copying or otherwise using the Software, Licensee acknowledges that it, he or she has read all of the terms and conditions of this Agreement, understands them, and agrees 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, COPY, OR OTHERWISE USE THE SOFTWARE.
1. PURPOSE

This Agreement provides the terms and conditions for Licensee’s licensing of the InvenSense Embedded MotionAppsTM software provided hereunder (the “Software”) and related How-to Guides provided by or on behalf of InvenSense.
2. DEFINITIONS

    2.1 “Binary Code” means Software that is provided to you in binary or object code format.
    2.2 “Confidential Information” means (i) the Software, and any portions, components or sub-files thereof; (ii) the structure, sequence and organization of the Software and the concepts, methods of operations and ideas disclosed therein; (iii) any trade secrets of InvenSense or its affiliates or its or their suppliers relating to the Software; (iv) the How-to Guides, and (v) the terms and conditions of this Agreement.
    2.3 “How-to Guide” means the instructional documentation for the Software provided to Licensee by or on behalf of InvenSense.
    2.4 “InvenSense Product” means the InvenSense motion processing devices specified on Exhibit A that are purchased by Licensee.
    2.5 “Licensed Materials” means the Software and the How-to Guides.
    2.6 “Licensee Product(s)” means Licensee product(s) that will incorporate both the Software and an InvenSense Product.
    2.7 “Modification” means any modification, derivative work, improvement or enhancement of the Licensed Materials created by or for Licensee.
    2.8 “Source Code” means Software that is provided to you in source code format.
    2.9 “Subcontractor(s)” means Licensee’s third party contract manufacturer(s) or ODM(s) which are bound to written confidentiality and such other restrictions with respect to the Software and other InvenSense confidential information no less stringent than those contained in this Agreement.

3. USE OF LICENSED MATERIALS.

    3.1 License Grants. Subject to and conditioned on Licensee’s compliance with the terms and conditions of this Agreement, InvenSense grants to Licensee, under InvenSense’s copyrights embodied in the Licensed Materials, the following non-exclusive, non-transferable, non-sublicensable rights to:
        (a) incorporate the Software into Licensee Products solely for use with the InvenSense Products included in such Licensee Products;
        (b) with respect only to Software provided to Licensee in Source Code, execute, reproduce and modify the Source Code and compile such modified or unmodified Source Code, to the extent needed to incorporate the Software, in source, binary or object code form, into Licensee Products in accordance with clause (a) above;
        (c) use the How-to Guides and make a reasonable number of copies of the How-to Guides as reasonably necessary to exercise Licensee’s license rights granted in clause (a) and (b) above;
        (d) demonstrate the Software solely as incorporated into Licensee Product and used with the InvenSense Product to actual and prospective customers of Licensee; and
        (e) distribute the Software solely as incorporated in Licensee Products for use with the InvenSense Products included therein to actual customers of Licensee.
    3.2 Subcontractors. Licensee may engage Subcontractors to exercise Licensee rights in Section 3.1(a), (b) and (c) above.

4. CONDITIONS TO LICENSE GRANTS AND OTHER TERMS

    4.1 Compliance with Other Terms and Conditions. The rights granted to Licensee in this Agreement are conditioned on Licensee’s ongoing compliance with the terms and conditions of this Agreement and of any purchase orders or other documents provided by or on behalf of InvenSense to Licensee in connection with Licensee’s purchase of InvenSense Product(s), including Licensee’s payment of fees required under such purchase orders or other documents.
    4.2 Restrictions. Licensee agrees to use the Licensed Materials only as permitted in this Agreement. Licensee will have no right to, and will not, (a) transfer, sublicense, distribute, modify, translate, modify, create derivative works of or reproduce Software or How-to Guides (or any portions thereof) except as expressly permitted in Section 3; (b) decompile, reverse engineer or disassemble the Binary Code; or (c) take any actions that would cause the Software or any portion thereof to become subject to the GNU General Public License or any other open source license that imposes any limitation, restriction or condition on the right or ability to use, license or distribute the Software or any portion thereof. Licensee will not remove, obscure or alter any InvenSense trademark or other marking from the Licensed Materials, and Licensee will reproduce, to the extent commercially reasonable, all such marks and proprietary rights and ownership notices on all copies of the Licensed Materials made by or for Licensee. Licensee agrees not to use the Licensed Materials with any integrated circuit device other than the InvenSense Products (except that incidental interaction by the Software with other components or software included in the Licensee Products is permitted).
    4.3 Ownership. Except as expressly licensed to Licensee herein, InvenSense retains and will own all right, title and interest including all intellectual property rights, in and to the Licensed Materials and any modifications or derivative works of the Licensed Materials that are developed by or for InvenSense (including any based on the Modifications or Licensee feedback).
    4.4 No Implied Rights. Other than the copyright licenses expressly granted to Licensee in Section 3 with respect to Licensed Materials, no right, license, authority or immunity of any kind is granted (or deemed assigned or granted) by InvenSense to Licensee or any third party (whether by implied license, estoppel, exhaustion, or otherwise and whether under this Agreement, as a result of the activities related thereto, or otherwise) under any of InvenSense’s patents and other intellectual property rights even if such patent or other rights are practiced (whether necessarily or otherwise) by the Licensed Materials or their permitted use in connection with the exercise of the rights expressly granted in Section 3. Licensee acknowledges and agrees that Licensee has no such rights and will not assert (or assist or permit any third party to assert) any position to the contrary.
    4.5 Licensee Intellectual Property Rights. Licensee and its affiliates shall not assert any intellectual property rights in or relating to Licensed Materials or Modifications and/or parts thereof against InvenSesne or its affiliates or its or their respective direct and indirect licensees, suppliers, manufacturers, distributors, contractors, customers or end users (all including their affiliates). Should Licensee or any of its affiliates bring a claim against InvenSense or any of the protected persons described above for infringement or misappropriation of any intellectual property rights in any Licensed Materials or Modifications and/or parts thereof, InvenSense will be entitled to terminate all licenses granted hereunder with immediate effect upon notice to Licensee, and all the licenses granted up to the date of such notice will cease to have any effect.
    4.6 Modifications. Licensee is not required to provide Modifications to InvenSense. However, in the event that Licensee provides Modifications to InvenSense, Licensee hereby grants and agrees to grant to InvenSense a perpetual, worldwide, non-exclusive, fully sublicensable (through multiple tiers), no-charge, royalty-free, irrevocable license to reproduce, prepare derivative works of, publicly display, publicly perform, distribute, make, have made, use, sell, offer for sale, import and otherwise exploit such Modifications and derivative works thereof. InvenSense will not have any obligation to keep the Modifications confidential, regardless of anything to the contrary in any agreement between Licensee and InvenSense.
    4.7 Feedback. InvenSense and its affiliates will have an unlimited, perpetual, non-exclusive, worldwide, transferable and sublicensable right to use and employ in its development, commercialization and any exploitation of the Licensed Materials and any other products and services all comments, bug reports, suggestions, ideas and other feedback that Licensee may provide to InvenSense or its affiliates concerning the Licensed Materials or Modifications.
    4.8 Confidential Information. Licensee will not disclose any Confidential Information to any third party (except Subcontractors, as permitted herein) or use Confidential Information except as expressly permitted in this Agreement. Licensee agrees to take all reasonable measures to protect Confidential Information and prevent its unauthorized disclosure, including measures at least as stringent as those measures Licensee takes to protect Licensee’s own most sensitive confidential information. Licensee agrees to restrict access to Confidential Information to Licensee employees and Subcontractors who are under obligations to protect Confidential Information in accordance with this Agreement and who have a “need to know” the Confidential Information to exercise Licensee license rights in this Agreement. All Confidential Information, and any documents and other tangible objects containing or representing Confidential Information, and all copies of Confidential Information, are and will remain the exclusive property of InvenSense.
    4.9 Responsibility for Subcontractors. Licensee is responsible to ensure that Licensee Subcontractors comply with the terms and conditions of this Agreement. Any act by a Subcontractor that would be a breach of this Agreement by Licensee if Licensee performed the act will be deemed a breach of this Agreement by Licensee.
    4.10 No Endorsement. Licensee may not use InvenSense’s name to endorse or promote products derived from the Licensed Materials without specific prior written permission.

5. UPDATES

At its discretion, InvenSense may provide Licensee with upgrades or updates to the Licensed Materials during the term of this Agreement (and such upgrades or updates will be included in the relevant category of, and become subject to the same terms and conditions as, Licensed Materials under this Agreement). However, InvenSense is under no obligation to provide any support or maintenance for the Licensed Materials and the Licensed Materials are provided to Licensee with no obligation whatsoever on the part of InvenSense to fix bugs, notify Licensee of known bugs now or in the future, update the Licensed Materials, or port the Licensed Materials to any other operating system, device, or hardware
6. DISCLAIMER OF WARRANTIES

TO THE FULLEST EXTENT PERMITTED BY LAW, THE LICENSED MATERIALS ARE PROVIDED TO COMPANY ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. FOR THE SAKE OF CLARITY, INVENSENSE AND ITS AFFILIATES AND ITS AND THEIR SUPPLIERS DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS (A) REGARDING THE USE, OR THE RESULTS OF THE USE, OF ANY OF THE LICENSED MATERIALS IN TERMS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, OR OTHERWISE, AND (B) THAT THE LICENSED MATERIALS HAVE BEEN TESTED FOR COMPLIANCE WITH ANY REGULATORY OR INDUSTRY STANDARD, INCLUDING WITHOUT LIMITATION ANY SUCH STANDARDS PROMULGATED BY THE FCC OR OTHER LIKE AGENCIES. THE SOFTWARE IS NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY TYPE OF SYSTEM OR APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR (E.G. MEDICAL SYSTEMS, LIFE SUSTAINING OR LIFE SAVING SYSTEMS).
7. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL INVENSENSE OR ANY OF ITS AFFILIATES OR ITS OR THEIR SUPPLIERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE LICENSED MATERIALS (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS) IN EXCESS OF ONE HUNDRED UNITED STATES DOLLARS (US$100) IN THE AGGREGATE, EVEN IF INVENSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DAMAGES, OR LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND REGARDLESS OF THE CAUSE IN LAW, INVENSENSE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING FROM INTERRUPTED OPERATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS GOODWILL, LOSS OF CAPITAL AND/OR LOSS OF INFORMATION AND DATA INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM AND TERMINATION

    8.1 Term. This Agreement will continue in effect until terminated as described below in this Section 8.
    8.2 Termination by Licensee. Licensee may terminate this Agreement with immediate effect upon written notice of termination to InvenSense.
    8.3 Termination by InvenSense. InvenSense may terminate this Agreement with immediate effect upon written notice to Licensee with no liability to Licensee if (a) Licensee breaches any term of this Agreement or (b) Licensee is acquired, merged, or undergoes a change of control (and Licensee agrees to notify InvenSense of any such transaction).
    8.4 Surviving Terms. The following provisions will survive termination or expiration of this Agreement: Section 4, Section 6, Section 7, Section 8, Section 9 and Section 10.
    8.5 Return of Materials. Immediately upon termination or expiration of this Agreement, Licensee agrees to return to InvenSense all copies of the Licensed Materials, or at InvenSense’s request, destroy all Licensed Materials. If we request, Licensee agrees to have an executive of Licensee to provide InvenSense a letter stating that all copies of the Licensed Materials have been returned or destroyed.

9. INDEMNITY.

Licensee agrees to indemnify and hold harmless InvenSense and its affiliates and its and their officers, directors, customers, employees and successors and assigns (each an "Indemnified Party") against any and all claims, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred by the Indemnified Party (including but not limited to costs of defense, investigation and reasonable attorney's fees) arising out of, resulting from or related to (i) any software, products, documentation, content, materials or derivative works created or developed by Licensee using the Software which causes an infringement of any patent, copyright, trademark, trade secret, or other property, publicity or privacy rights of any third parties arising in any jurisdiction anywhere in the world, (ii) the download, distribution, installation, storage, execution, use or transfer of such software, products, documentation, content, materials or derivative works by any person or entity, and/or (iii) any breach of this Agreement by Licensee. If requested by an Indemnified Party, Licensee agrees to defend such Indemnified Party in connection with any third party claims, demands, or causes of action resulting from, arising out of or in connection with any of the foregoing.
10. MISCELLANEOUS PROVISIONS.

    10.1 Notices. All notices required hereunder will be in writing and will be sent by (a) U.S. mail (first class), or (b) nationally recognized courier service (e.g., DHL, Federal Express), with all postage or delivery charges prepaid, subject to confirmation via U.S. mail or nationally recognized courier service. Notices to InvenSense will be sent to addressed to 1197 Borregas Avenue, Sunnyvale, CA 94089, USA; and notices to Licensee will be sent to the physical or email address supplied by Licensee as part of Licensee’s registration to InvenSense’s “Developers Corner,” or to such other address(es) as may be furnished by written notice in the manner set forth herein. Notices will be deemed to have been served when delivered or, if delivery is not performed as a result of the addressee’s fault, when tendered.
    10.2 United States Government End Users. The Licensed Materials are “Commercial Items(s)” as defined in 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. If Licensee is licensing the Licensed Materials for acquisition by the U.S. Government or any contractor therefor, Licensee must license consistent with the policies set forth in 48 C.F.R. § 12.212 (for civilian agencies), and 48 C.F.R. § 227.7202 1 and 227.7202 4 (for the Department of Defense), and their successors.
    10.3 Representations and Warranties. Licensee represents and warrants that Licensee has the right to enter into this Agreement and to meet Licensee obligations under this Agreement.
    10.4 Governing Law; Venue. Any and all disputes arising out of or related to this Agreement, including but not limited to the interpretation, validity, enforceability and performance of this Agreement, will be governed by and construed in accordance with the law of the State of California, without regard to or application of any of California’s conflict of law rules. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in the federal courts in the Northern District of California or in the state courts in Santa Clara County, California, and each party hereto irrevocably submits to the jurisdiction and venue of any such court in any such suit, action or proceeding. Notwithstanding the foregoing, InvenSense may seek interim or injunctive relief in any court of competent jurisdiction to protect its intellectual property rights.
    10.5 Severability; Waiver. If any provision of this Agreement is determined to be invalid, unenforceable, overbroad, or illegal, the validity or enforceability of the other provisions will not be affected and any the affected provision will be construed by limiting or reducing it, so as to be enforceable with applicable law. No waiver by InvenSense of any right under this Agreement will be construed as a waiver of any other right or breach. Licensee must comply with all applicable laws regarding use of the Licensed Materials (including without limitation all US and international export laws). All of InvenSense’s rights, disclaimers, and limitations of liability under this Agreement and with respect to the Licensed Materials will also apply to any component or portion of the Licensed Materials.
    10.6 Assignment. InvenSense may assign to another person or entity this Agreement or any of its rights under this Agreement in whole or in part. Licensee may not assign, sublicense, or transfer this Agreement or any of Licensee’s rights hereunder to any third party, without InvenSense’s express prior written consent, which may be withheld in InvenSense’s sole discretion. This Agreement will be binding upon Licensee and Licensee heirs, executors, administrators, and successors, and will inure to the benefit of all successors and assigns of InvenSense.
    10.7 Entire Agreement; Amendment. This Agreement, including all Exhibits hereto, constitutes the entire agreement and understanding of the Licensee and InvenSense with respect to the subject matter hereof, and supersedes all prior and contemporaneous correspondence, negotiations, agreements and understandings between Licensee and InvenSense, and any representations and warranties, both oral and written.    Notwithstanding the foregoing, if Licensee has entered into a separate confidentiality agreement or non-disclosure agreement with InvenSense with respect to the confidentiality of the How-to Guides, then that agreement will continue to apply with respect to that subject matter to the extent that it is more protective of the confidentiality of the How-to Guides than this Agreement.    No modification, cancellation, or amendment of this Agreement will be binding unless executed in writing (referencing this Agreement) by Licensee and a duly authorized officer of InvenSense.

    Exhibit A:

    Licensed Material is permitted to be used only with the following Devices:
        IMU-3000, MPU-3050, MPU-6050, MPU-9150

    *Notes: Additional devices may be added in Exhibit A at the sole discretion of InvenSense as long as notice is given in accordance to Section 10.1.

    INVENSENSE, INC | LA-SW-0001 v2.0 | MoFo pa-1525358