1 SOFTWARE LICENSE AGREEMENT 2 3 Unless you and InvenSense Corporation ("InvenSense") execute a separate written 4 software license agreement governing use of the accompanying software, this 5 software is licensed to you under the terms of this Software License 6 Agreement ("Agreement"). 7 8 ANY USE, REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE CONSTITUTES YOUR 9 ACCEPTANCE OF THIS AGREEMENT. 10 11 1. DEFINITIONS. 12 13 1.1. "InvenSense Product" means any of the proprietary integrated circuit 14 product(s) sold by InvenSense with which the Software was designed to be used, 15 or their successors. 16 17 1.2. "Licensee" means you or if you are accepting on behalf of an entity 18 then the entity and its affiliates exercising rights under, and complying 19 with all of the terms of this Agreement. 20 21 1.3. "Software" shall mean that software made available by InvenSense to 22 Licensee in binary code form with this Agreement. 23 24 2. LICENSE GRANT; OWNERSHIP 25 26 2.1. License Grants. Subject to the terms and conditions of this Agreement, 27 InvenSense hereby grants to Licensee a non-exclusive, non-transferable, 28 royalty-free license (i) to use and integrate the Software in conjunction 29 with any other software; and (ii) to reproduce and distribute the Software 30 complete, unmodified and only for use with a InvenSense Product. 31 32 2.2. Restriction on Modification. If and to the extent that the Software is 33 designed to be compliant with any published communications standard 34 (including, without limitation, DOCSIS, HomePNA, IEEE, and ITU standards), 35 Licensee may not make any modifications to the Software that would cause the 36 Software or the accompanying InvenSense Products to be incompatible with such 37 standard. 38 39 2.3. Restriction on Distribution. Licensee shall only distribute the 40 Software (a) under the terms of this Agreement and a copy of this Agreement 41 accompanies such distribution, and (b) agrees to defend and indemnify 42 InvenSense and its licensors from and against any damages, costs, liabilities, 43 settlement amounts and/or expenses (including attorneys' fees) incurred in 44 connection with any claim, lawsuit or action by any third party that arises 45 or results from the use or distribution of any and all Software by the 46 Licensee except as contemplated herein. 47 48 2.4. Proprietary Notices. Licensee shall not remove, efface or obscure any 49 copyright or trademark notices from the Software. Licensee shall include 50 reproductions of the InvenSense copyright notice with each copy of the 51 Software, except where such Software is embedded in a manner not readily 52 accessible to the end user. Licensee acknowledges that any symbols, 53 trademarks, tradenames, and service marks adopted by InvenSense to identify the 54 Software belong to InvenSense and that Licensee shall have no rights therein. 55 56 2.5. Ownership. InvenSense shall retain all right, title and interest, 57 including all intellectual property rights, in and to the Software. Licensee 58 hereby covenants that it will not assert any claim that the Software created 59 by or for InvenSense infringe any intellectual property right owned or 60 controlled by Licensee. 61 62 2.6. No Other Rights Granted; Restrictions. Apart from the license rights 63 expressly set forth in this Agreement, InvenSense does not grant and Licensee 64 does not receive any ownership right, title or interest nor any security 65 interest or other interest in any intellectual property rights relating to 66 the Software, nor in any copy of any part of the foregoing. No license is 67 granted to Licensee in any human readable code of the Software (source code). 68 Licensee shall not (i) use, license, sell or otherwise distribute the 69 Software except as provided in this Agreement, (ii) attempt to reverse 70 engineer, decompile or disassemble any portion of the Software; or (iii) use 71 the Software or other material in violation of any applicable law or 72 regulation, including but not limited to any regulatory agency, such as FCC, 73 rules. 74 75 3. NO WARRANTY OR SUPPORT 76 77 3.1. No Warranty. THE SOFTWARE IS OFFERED "AS IS," AND INVENSENSE GRANTS AND 78 LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, 79 COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. INVENSENSE SPECIFICALLY 80 DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC 81 PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY UPGRADES TO OR 82 DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, INVENSENSE 83 GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT 84 INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS 85 THEREFROM INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR 86 RELIABILITY. 87 88 3.2. No Support. Nothing in this agreement shall obligate InvenSense to 89 provide any support for the Software. InvenSense may, but shall be under no 90 obligation to, correct any defects in the Software and/or provide updates to 91 licensees of the Software. Licensee shall make reasonable efforts to 92 promptly report to InvenSense any defects it finds in the Software, as an aid 93 to creating improved revisions of the Software. 94 95 3.3. Dangerous Applications. The Software is not designed, intended, or 96 certified for use in components of systems intended for the operation of 97 weapons, weapons systems, nuclear installations, means of mass 98 transportation, aviation, life-support computers or equipment (including 99 resuscitation equipment and surgical implants), pollution control, hazardous 100 substances management, or for any other dangerous application in which the 101 failure of the Software could create a situation where personal injury or 102 death may occur. Licensee understands that use of the Software in such 103 applications is fully at the risk of Licensee. 104 105 4. TERM AND TERMINATION 106 107 4.1. Termination. This Agreement will automatically terminate if Licensee 108 fails to comply with any of the terms and conditions hereof. In such event, 109 Licensee must destroy all copies of the Software and all of its component 110 parts. 111 112 4.2. Effect Of Termination. Upon any termination of this Agreement, the 113 rights and licenses granted to Licensee under this Agreement shall 114 immediately terminate. 115 116 4.3. Survival. The rights and obligations under this Agreement which by 117 their nature should survive termination will remain in effect after 118 expiration or termination of this Agreement. 119 120 5. CONFIDENTIALITY 121 122 5.1. Obligations. Licensee acknowledges and agrees that any documentation 123 relating to the Software, and any other information (if such other 124 information is identified as confidential or should be recognized as 125 confidential under the circumstances) provided to Licensee by InvenSense 126 hereunder (collectively, "Confidential Information") constitute the 127 confidential and proprietary information of InvenSense, and that Licensee's 128 protection thereof is an essential condition to Licensee's use and possession 129 of the Software. Licensee shall retain all Confidential Information in 130 strict confidence and not disclose it to any third party or use it in any way 131 except under a written agreement with terms and conditions at least as 132 protective as the terms of this Section. Licensee will exercise at least the 133 same amount of diligence in preserving the secrecy of the Confidential 134 Information as it uses in preserving the secrecy of its own most valuable 135 confidential information, but in no event less than reasonable diligence. 136 Information shall not be considered Confidential Information if and to the 137 extent that it: (i) was in the public domain at the time it was disclosed or 138 has entered the public domain through no fault of Licensee; (ii) was known to 139 Licensee, without restriction, at the time of disclosure as proven by the 140 files of Licensee in existence at the time of disclosure; or (iii) becomes 141 known to Licensee, without restriction, from a source other than InvenSense 142 without breach of this Agreement by Licensee and otherwise not in violation 143 of InvenSense's rights. 144 145 5.2. Return of Confidential Information. Notwithstanding the foregoing, all 146 documents and other tangible objects containing or representing InvenSense 147 Confidential Information and all copies thereof which are in the possession 148 of Licensee shall be and remain the property of InvenSense, and shall be 149 promptly returned to InvenSense upon written request by InvenSense or upon 150 termination of this Agreement. 151 152 6. LIMITATION OF LIABILITY 153 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL INVENSENSE OR ANY OF 154 INVENSENSE'S LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, 155 SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF 156 LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR 157 OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS 158 OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH 159 DAMAGES. IN NO EVENT WILL INVENSENSE'S LIABILITY WHETHER IN CONTRACT, TORT 160 (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE FOR 161 SOFTWARE UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING 162 ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 163 164 7. MISCELLANEOUS 165 166 7.1. Export Regulations. YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS 167 SUBJECT TO UNITED STATES AND OTHER APPLICABLE EXPORT-RELATED LAWS AND 168 REGULATIONS AND THAT YOU MAY NOT EXPORT, RE-EXPORT OR TRANSFER THE SOFTWARE 169 OR ANY DIRECT PRODUCT OF THE SOFTWARE EXCEPT AS PERMITTED UNDER THOSE LAWS. 170 WITHOUT LIMITING THE FOREGOING, EXPORT, RE-EXPORT OR TRANSFER OF THE SOFTWARE 171 TO CUBA, IRAN, NORTH KOREA, SUDAN AND SYRIA IS PROHIBITED. 172 173 7.2 Assignment. This Agreement shall be binding upon and inure to the 174 benefit of the parties and their respective successors and assigns, provided, 175 however that Licensee may not assign this Agreement or any rights or 176 obligation hereunder, directly or indirectly, by operation of law or 177 otherwise, without the prior written consent of InvenSense, and any such 178 attempted assignment shall be void. Notwithstanding the foregoing, Licensee 179 may assign this Agreement to a successor to all or substantially all of its 180 business or assets to which this Agreement relates that is not a competitor 181 of InvenSense. 182 183 7.3. Governing Law; Venue. This Agreement shall be governed by the laws of 184 California without regard to any conflict-of-laws rules, and the United 185 Nations Convention on Contracts for the International Sale of Goods is hereby 186 excluded. The sole jurisdiction and venue for actions related to the subject 187 matter hereof shall be the state and federal courts located in the County of 188 Orange, California, and both parties hereby consent to such jurisdiction and 189 venue. 190 191 7.4. Severability. All terms and provisions of this Agreement shall, if 192 possible, be construed in a manner which makes them valid, but in the event 193 any term or provision of this Agreement is found by a court of competent 194 jurisdiction to be illegal or unenforceable, the validity or enforceability 195 of the remainder of this Agreement shall not be affected if the illegal or 196 unenforceable provision does not materially affect the intent of this 197 Agreement. If the illegal or unenforceable provision materially affects the 198 intent of the parties to this Agreement, this Agreement shall become 199 terminated. 200 201 7.5. Equitable Relief. Licensee hereby acknowledges that its breach of this 202 Agreement would cause irreparable harm and significant injury to InvenSense 203 that may be difficult to ascertain and that a remedy at law would be 204 inadequate. Accordingly, Licensee agrees that InvenSense shall have the right 205 to seek and obtain immediate injunctive relief to enforce obligations under 206 the Agreement in addition to any other rights and remedies it may have. 207 208 7.6. Waiver. The waiver of, or failure to enforce, any breach or default 209 hereunder shall not constitute the waiver of any other or subsequent breach 210 or default. 211 212 7.7. Entire Agreement. This Agreement sets forth the entire Agreement 213 between the parties and supersedes any and all prior proposals, agreements 214 and representations between them, whether written or oral concerning the 215 Software. This Agreement may be changed only by mutual agreement of the 216 parties in writing. 217 218
