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Universal Electronics Inc. ("UEI")
SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
“IMPORTANT-READ CAREFULLY: BY CLICKING THE "I AGREE" BUTTON BELOW THIS AGREEMENT AND/OR INSTALLING OR USING THE UEI DOCUMENTATION AND SOFTWARE FILES PROVIDED IN CONNECTION WITH THIS AGREEMENT (THE "SOFTWARE"), THE INDIVIDUAL OR ENTITY RECEIVING THE SOFTWARE ("RECIPIENT") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF RECIPIENT DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, RECIPIENT MUST CLICK THE "CANCEL" BUTTON BELOW AND NOT INSTALL OR USE THE SOFTWARE.”
1. "Software" means the software, and any associated information, know-how, and data comprising UEI's software, as delivered by UEI in connection with this Agreement. "Confidential Information" means all information disclosed by UEI to Recipient that UEI deems confidential, including but not limited to all technical and/or business information disclosed by UEI to Recipient, any third-party confidential information which may be properly disclosed by UEI to Recipient, any information which is learned by Recipient from UEI or through the use, inspection, or evaluation of UEI's Software provided hereunder, technical and/or business information, the existence and the terms and conditions of this Agreement, and the existence and the substance of the discussion between the UEI and Recipient relating to the subject matter hereof. Confidential Information shall not include information that is or becomes published and part of the public domain through no fault of or breach by Recipient of its obligations under this Agreement, or that Recipient knows on a non-confidential basis at the time it receives such information as evidenced by written records kept in the ordinary course of Recipient's business. Recipient shall not disclose Confidential Information to any third party, and Recipient shall use Confidential Information only to the extent required to accomplish the Purpose set forth herein. All Confidential Information shall remain UEI's property and shall be returned (or, at UEI's option, destroyed) upon UEI's written request. UEI is not granting Recipient any right or license to any UEI intellectual property rights under this Agreement, nor is there any agency or partnership relationship created by this Agreement between Recipient and UEI. The Software and Confidential Information provided by UEI to Recipient it solely to be used for the purpose of testing, evaluation, and integration efforts in Recipient's products for internal use only (the "Purpose")
2. UEI shall deliver to Recipient the Software for use at no charge to Recipient for a period of six (6) months from the date Recipient accepts this Agreement, or sooner if this Agreement is terminated at the sole discretion of UEI.
3. Upon request by UEI or upon expiration or termination of this Agreement, Recipient shall promptly return the Confidential Information, Software, related drawings, notes, specifications, etc. (whether provided to Recipient by UEI or created by Recipient for UEI), and any copies or duplicates of such related drawings, notes, specifications, etc., to UEI, at UEI's expense. Recipient may retain all copies which are embedded in archival backups, or which form an integral part of its technical or business records.
4. Recipient acknowledges that UEI does not guarantee that the Confidential Information and/or Software is free of errors. Any use of the Confidential Information and/or Software is at Recipient's own risk and Confidential Information and/or Software is provided to Recipient "AS IS." UEI MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, GOOD TITLE AND AGAINST INFRINGEMENT.
5. Recipient agrees that UEI shall not be responsible for any loss or damage to Recipient caused by failure of UEI to deliver the Confidential Information and/or Software or failure of the Confidential Information and/or Software furnished hereunder to function. NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE CONFIDENTIAL INFORMATION AND/OR SOFTWARE. Notwithstanding the foregoing, Recipient shall be liable for any loss or damage to the Confidential Information and/or Software resulting from Recipient's willful or negligent acts or omissions.
6. Recipient acknowledges and agrees that UEI is the sole owner of the Software and Confidential Information being provided and disclosed under this Agreement. Recipient shall not offer, loan, transfer, encumber, sell or otherwise dispose of the Software to any third party without having received prior written authorization of UEI. Otherwise, any such unauthorized disposal shall be deemed void. In connection with any information (including but not limited to ideas, improvements, suggestions, etc) Recipient discloses or offers to UEI ("Recipient's Information"), including information related to the Software and/or Confidential Information, Recipient understands that UEI may, currently or in the future, be developing information internally or receiving information from other parties that may be similar to Recipient's Information. Accordingly, nothing in this agreement will be construed as a representation or covenant that UEI will not develop products or systems or have products or systems developed for us that compete with products or systems contemplated by Recipient or Recipient's Information.
7. All right, title and interest in all intellectual property, tangible or intangible, which are directly derived from use of the Software and/or Confidential Information furnished hereunder and any technical information furnished to Recipient by UEI under this Agreement, including that which may be or might become protectable by patent, trademark, copyright, trade secret, or any other legal theory, shall remain exclusively with UEI. All right, title and interest in all intellectual property, tangible or intangible, which are contained in or derived from use of the reports or feedback provided by Recipient to UEI, including that which may be or might become protectable by patent, trademark, copyright, trade secret, or any other legal theory, shall belong to UEI. No license or other rights of any kind are granted or conveyed by UEI's furnishing the Software and/or Confidential Information to Recipient hereunder, except for the limited internal license to use and evaluate the Software and Confidential Information in confidence as expressly provided herein.
8. Recipient acknowledges that monetary damages may not adequately remedy an unauthorized use or disclosure of Confidential Information, and that UEI is entitled, without waiving any other rights or remedies and without posting a bond, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
9.1. Notices. All notices required hereunder shall be in writing and shall be deemed to have been duly given on the date of: (a) confirmed delivery if sent by overnight courier or express mail service; (b) confirmed delivery if sent by postage pre-paid certified or registered mail (or the equivalent), return receipt requested (the return receipt constituting prima facie evidence of the giving and date of such notice); (c) personal delivery; or (d) confirmation of receipt of facsimile transmission. Notice addresses for Recipient shall be its address provided to UEI, or it's published principal place of business (eg. on Recipient's website or Recipient's corporate records available from the secretary of state or equivalent governing body), and UEI's notice address shall be Attn: Legal Dept., 201 E. Sandpointe Ave., 8 Floor, Santa Ana, CA 92707, but each party may change its address by written notice to the other in advance.
9.2. Transferability. Recipient shall not assign any of its rights, delegate any of its obligations, or transfer this Agreement without the prior written consent of UEI, and any such attempt shall be void. For purposes of this Section, a twenty percent (20%) change in control shall constitute an attempted assignment.
9.3. Waiver. No waiver of any provision of this Agreement shall be effective unless made in writing. Except as otherwise specifically set forth herein, the failure of either party to object to or act with respect to any conduct of the other party which is in violation of the terms of this Agreement shall not be construed as a waiver thereof, or as waiver of any future breach or subsequent wrongful conduct.
9.4. Governing Law. With the sole exception of mandatory applicable law, if any, which is not subject to exclusion by contract, this Agreement shall be governed and construed in all respects by the laws of the State of California, U.S.A., without regard to its choice of law or conflict of law provisions. No international agreement, treaty, convention or protocol, including the United Nations Convention on Contracts for the Sale of Goods shall apply in any manner to this Agreement. The parties expressly submit and consent in advance to exclusive jurisdiction and venue in Orange County, California; provided that nothing in this Agreement shall be deemed or operate to preclude either party from bringing suit or taking other legal action in any other jurisdiction to enforce a judgment, order or other decision.
9.5. Force Majeure. Neither party shall be held responsible for any delay in performance of any part of this Agreement to the extent such delay results from causes beyond its reasonable control and without its fault or negligence ("Force Majeure Event"); provided, however, that the non-performing party shall act diligently and in good faith to: (a) minimize potential cost, loss or damage to the other party due to such non-performance; and (b) perform its obligations under this Agreement as soon as the Force Majeure Event has subsided or can be avoided.
9.6. Construction. If any provision of this Agreement, or the application thereof, is for any reason or to any extent determined by an adjudicator to be invalid or unenforceable under applicable law, the remaining provisions of this Agreement will remain in effect and be interpreted so as to best reasonably effectuate the intent of the parties and any provision deleted herefrom shall be replaced by a valid substitute provision which implements or best effectuates the parties' original intent. The headings in this Agreement are merely exemplary, and shall not be construed as terms of limitation. The verb "to include" (and all forms thereof) shall not be construed as a term of limitation
9.7. Costs. In any judicial proceeding or arbitration adjudicating a dispute arising out of or related to the Software or derivatives, the license granted hereunder, the terms and conditions hereof or any alleged breach of any obligation(s) of this Agreement, the prevailing party is entitled to recover all reasonable costs, fees and expenses ("Costs") associated with such proceeding (including without limitation reasonable Costs of attorneys, expert witnesses, consultants and other professionals), except that: (a) if the prevailing party has at any time refused a written settlement offer pertaining to such dispute which equates to or is more favorable to the prevailing party than the prevailing party's actual recovery or the outcome determined in such judicial proceeding or arbitration, then no such Costs shall be awarded; and (b) in any event, any such Costs to be awarded must bear a reasonable relation to such actual recovery.
9.8. Entire Agreement; Amendment; Precedence. Except as otherwise provided herein, this Agreement constitute the entire understanding and agreement of the parties with respect to its subject matter, and supersede and supplant any and all prior and contemporaneous understandings, representations and agreements, whether written or oral, with respect to such subject matter. No amendment, modification, or release from any provision(s) hereof is valid unless effected by a mutual agreement in writing. No modification of this Agreement or of any term or condition hereof shall result due to UEI's acknowledgment or acceptance of Recipient forms (e.g., purchase orders, acknowledgment forms, etc.) containing different or additional terms and conditions unless expressly and specifically accepted by UEI by means of a writing which references this Subsection. With respect to any inconsistency or conflict which arises between this Agreement and the Supply Agreement, the terms of this Agreement shall prevail with respect to subject matter covered by this Agreement.
9.9. Import and Export. Recipient shall not export the Software or derivatives in violation of any applicable U.S. export control law or regulation, or any foreign import or export control law or regulation. As between UEI and Recipient, Recipient shall be solely responsible for monitoring and complying with all such laws and regulations. UEI shall provide all information under its control which is necessary for Recipient to obtain any export or import licenses required for Recipient to ship or receive the Software, including, but not limited to, certificates of origin, (NAFTA, etc.), manufacturer's affidavits, Buy America qualification, and U.S. Federal Communications Commissions identifier, if applicable. Recipient acknowledges that Software that contains security protocols includes Software that UEI believes fall under U.S. export control law or regulation.
9.10. Compliance with Laws. Each party warrants that, to its knowledge, its compliance with the terms and conditions of this Agreement will not violate any Federal, state or local laws, regulations or ordinances now or hereafter enacted or any third-party agreements, including but not limited to the Foreign Corrupt Practices Act, 15 USC Section 78 or successor statute. Upon request of a party, the other party shall issue certificates certifying compliance with any of the aforementioned laws, regulations or ordinances as may be applicable to the Software and/or services being furnished hereunder.
9.11. Relationship of Parties. The parties are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
9.12. Survival. Sections 1, 3 through 8, Subsections 9.1, and 9.3 through 9.12 shall survive any termination of this Agreement.