1 THIS DEVELOPER SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGALLY 2 BINDING AGREEMENT BETWEEN Audience, Inc. ("LICENSOR") AND 3 YOU OR THE LEGAL ENTITY YOU REPRESENT ("You" or its possessive, "Your"). BY 4 TYPING "I ACCEPT" WHERE INDICATED YOU ACKNOWLEDGE THAT YOU HAVE READ THIS 5 AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. 6 IF YOU DO NOT AGREE TO THESE TERMS YOU MUST DISCONTINUE THE INSTALLATION 7 PROCESS AND YOU SHALL NOT USE THE SOFTWARE OR RETAIN ANY COPIES OF THE 8 SOFTWARE OR DOCUMENTATION. ANY USE OR POSSESSION OF THE SOFTWARE BY YOU IS 9 SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF THE 10 SOFTWARE IS INSTALLED ON A COMPUTER OWNED BY A CORPORATION OR OTHER LEGAL 11 ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND 12 SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. 13 14 1. Special Definitions 15 16 a. The term "Android" means the open source mobile platform, software 17 stack, operating system, middleware, application programming 18 interfaces and mobile applications under the trade-name "Android" 19 distributed at Android.com. 20 21 b. The term "Android Applications" means a software application or 22 open-source contribution developed by You, designed to operate with 23 Android that does not contain or incorporate any of the Software. 24 25 c. The term "Authorized Android Enabled Device" means only the device 26 identified on the site from which You downloaded the Software. 27 The term "Software" means the Licensor's proprietary software and 28 libraries in object code form, designed for use on the Authorized 29 Android Enabled Device. 30 31 d. The term "Authorized Android Enabled Device Software" means a 32 packaged build for Authorized Android Enabled Devices, consisting 33 of files suitable for installation on an Authorized Android Enabled 34 Device using a mechanism such as fastboot mode or recovery mode. 35 36 2. License Grant 37 38 a. Subject to the terms of this Agreement, Licensor hereby grants to 39 You, free of charge, a non-exclusive, non-sublicensable, 40 non-transferable, limited license, during the term of 41 this Agreement, to download, install and use the Software 42 internally in machine-readable (i.e., object code) form and the 43 Documentation for non-commercial use on an Authorized Android 44 Enabled Device and non-commercial redistribution of the Authorized 45 Android Enabled Device Software (the "Limited Purpose"). You may 46 grant your end users the right to use the Software for 47 the Limited Purpose. 48 The license to the Software granted to You hereunder is solely for 49 the Limited Purpose set forth in this section, and the Software 50 shall not be used for any other purpose. 51 52 3. Restrictions 53 54 a. Retention of Rights. The entire right, title and interest in the 55 Software shall remain with Licensor and, unless specified in 56 writing hereunder, no rights are granted to any of the Software. 57 Except for the right to use the Software for the Limited Purpose, 58 the delivery of the Software to You does not convey to You any 59 intellectual property rights in the Software, including, but not 60 limited to any rights under any patent, trademark, copyright, or 61 trade secret. Neither the delivery of the Software to You nor any 62 terms set forth herein shall be construed to grant to You, either 63 expressly, by implication or by way of estoppel, any license under 64 any patents or other intellectual property rights covering or 65 relating to any other product or invention or any combination of 66 the Software with any other product. Any rights not expressly 67 granted to You herein are reserved by Licensor. 68 69 b. No Commercialization or Distribution of the Software and 70 Documentation. Except as expressly provided in Section 2 of this 71 Agreement, You shall have no right to (i) copy, disclose, 72 distribute, publically perform, publically display, transfer, 73 alter, modify, translate, disassemble, decompile, reverse engineer, 74 or adapt the Software and Documentation, or any portion thereof, or 75 create any derivative works based thereon; (ii) rent, lease, 76 assign, sublicense, resell, disclose or otherwise transfer the 77 Software and Documentation in whole or in part to any third party 78 (iii) use the Software and Documentation except for the Limited 79 Purpose, (iv) remove or alter any of the copyright or proprietary 80 notices contained in any of the Software and Documentation. For the 81 purposes of clarity, nothing in this Agreement prohibits You from 82 making and distributing Android Applications under commercial or 83 non-commercial terms, provided that You shall not contain, 84 incorporate, and/or compile the Software or any of its derivative 85 works, in whole or in part, into Your Android Applications and/or 86 any software/devices created by You or by third parties acting on 87 Your behalf. You and any such third party shall comply with all of 88 the terms and conditions of this Agreement. 89 90 c. No Reverse Engineering. Except for any portions of the Software 91 provided to You in source code format and except for any third 92 party code distributed with the Software that is licensed under 93 contrary terms, You will not reverse engineer, disassemble, 94 decompile, or translate the Software, or otherwise attempt to 95 derive the source code version of the Software, except if and to 96 the extent expressly permitted under any applicable law. 97 98 d. Third Party Software. You agree that Android may contain third 99 party software. You agree that you may not distribute such third 100 party software for any purpose without appropriate licenses from 101 the applicable third party or parties. 102 103 e. No Transfer or Assignment. You shall not assign any of its rights 104 or obligations under this Agreement. Any attempted assignment in 105 contravention of this Section shall be void. 106 107 4. Indemnity 108 109 a. You agree to indemnify and hold harmless Licensor and 110 its officers, directors, customers, employees and successors and 111 assigns (each an "Indemnified Party") against any and all claims, 112 demands, causes of action, losses, liabilities, damages, costs and 113 expenses, incurred by the Indemnified Party (including but not 114 limited to costs of defense, investigation and reasonable 115 attorney's fees) arising out of, resulting from or related to 116 (i) any software, products, documentation, content, materials or 117 derivative works created or developed by You using the Software 118 which causes an infringement of any patent, copyright, trademark, 119 trade secret, or other property, publicity or privacy rights of any 120 third parties arising in any jurisdiction anywhere in the world, 121 (ii) the download, distribution, installation, storage, execution, 122 use or transfer of such software, products, documentation, content, 123 materials or derivative works by any person or entity, and/or 124 (iii) any breach of this Agreement by You. If requested by an 125 Indemnified Party, You agree to defend such Indemnified Party in 126 connection with any third party claims, demands, or causes of 127 action resulting from, arising out of or in connection with any of 128 the foregoing. 129 130 5. Limitation of Liability 131 132 a. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO 133 CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL 134 LICENSOR, ITS AFFILIATES AND/OR ITS DIRECTORS, OFFICERS, 135 EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, 136 SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT 137 LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS 138 INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING 139 OUT OF OR IN CONNECTION WITH THE SOFTWARE OR ANY DOWNLOAD, 140 INSTALLATION OR USE OF, OR INABILITY TO USE, THE SOFTWARE, EVEN IF 141 LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH 142 DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR 143 EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO 144 THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED. 145 IN NO EVENT SHALL LICENSOR'S TOTAL AGGREGATE LIABILITY 146 TO YOU FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF 147 ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, 148 INDEMNIFICATION OR OTHERWISE) EXCEED ONE HUNDRED U.S. DOLLARS 149 (US$100). THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL BE 150 DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 151 THE PARTIES HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK 152 AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS 153 PARAGRAPH ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE 154 PARTIES. 155 156 6. No Warranty 157 158 a. LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH 159 RESPECT TO THE SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS 160 AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF 161 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST 162 INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF 163 TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. 164 NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED AS A 165 WARRANTY OR REPRESENTATION BY LICENSOR (I) AS TO THE VALIDITY OR 166 SCOPE OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT 167 AND (II) THAT ANY MANUFACTURE OR USE WILL BE FREE FROM INFRINGEMENT 168 OF PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF 169 OTHERS, AND IT SHALL BE THE SOLE RESPONSIBILITY OF YOU TO MAKE SUCH 170 DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF 171 LICENSES UNDER PATENTS AND OTHER INTELLECTUAL PROPERTY OF THIRD 172 PARTIES. Licensor SHALL NOT HAVE ANY OBLIGATION TO 173 PROVIDE ANY TECHNICAL SUPPORT OF THE SOFTWARE UNDER THIS AGREEMENT. 174 175 7. Term and Termination 176 177 a. This Agreement shall be effective on the date You accept this 178 Agreement and shall remain in effect until terminated as provided 179 herein. You may terminate the Agreement at any time by deleting and 180 destroying all copies of the Software and all related information 181 in Your possession or control. This Agreement terminates 182 immediately and automatically, with or without notice, if You fail 183 to comply with any provision hereof. Additionally, Licensor may at 184 any time terminate this Agreement, without cause, upon notice to 185 You. Upon termination You must delete or destroy all copies of the 186 Software in Your possession, and the license granted to You in this 187 Agreement shall terminate. Sections 3, 4, 5, 6 and 8 shall survive 188 the termination of this Agreement. 189 190 8. Miscellaneous 191 192 a. Governing Law. This Agreement is governed and interpreted in 193 accordance with the laws of the State of California without giving 194 effect to its conflict of laws provisions. The United Nations 195 Convention on Contracts for the International Sale of Goods is 196 expressly disclaimed and shall not apply. Any claim arising out of 197 or related to this Agreement must be brought exclusively in a 198 federal or state court located in Santa Clara County, California 199 and You consent to the jurisdiction and venue of such courts. 200 201 b. Waiver and Severability. The failure of either party to require 202 performance by the other party of any provision of this Agreement 203 shall not affect the full right to require such performance at any 204 time thereafter; nor shall the waiver by either party of a breach 205 of any provision of this Agreement be taken or held to be a waiver 206 of the provision itself. Severability. If any provision of this 207 Agreement is unenforceable or invalid under any applicable law or 208 is so held by applicable court decision, such unenforceability or 209 invalidity shall not render this Agreement unenforceable or invalid 210 as a whole, and such provision shall be changed and interpreted so 211 as to best accomplish the objectives of such unenforceable or 212 invalid provision within the limits of applicable law or 213 applicable court decisions. 214 215 c. Amendment and Modification. This Agreement and any of its terms and 216 provisions may only be amended, modified, supplemented or waived in 217 a writing signed by both parties hereto. 218 219 d. Compliance with Laws. You shall comply with all applicable laws, 220 rules, and regulations in connection with its activities under this 221 Agreement. 222 223 e. Entire Agreement. This Agreement completely and exclusively states 224 the agreement between You and Licensor regarding this subject 225 matter. 226
