THIS CERTICOM ZIGBEE SDK LICENSE AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU INDIVIDUALLY IF YOU ARE AGREEING TO IT IN YOUR OWN CAPACITY, OR IF YOU ARE AUTHORIZED TO ACQUIRE THE SDK ON BEHALF OF YOUR COMPANY OR ORGANIZATION, BETWEEN THE ENTITY FOR WHOSE BENEFIT YOU ACT ("YOU") AND CERTICOM CORP. ("CERTICOM"). BEFORE DOWNLOADING THE SDK, PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT CERTICOM AT firstname.lastname@example.org. IF, PRIOR TO DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SDK. IN THIS CASE, DO NOT ATTEMPT TO DOWNLOAD THE SDK BY ANY MEANS AND IF YOU HAVE ALREADY DONE SO, PROMPTLY DELETE THE SDK.
- 1. Definitions
- "API" means an application programming interface.
- "Applications" means software application programs, software development kits, firmware, or portions thereof, specifically designed and developed by You using the SDK for use in or to facilitate the development, test or manufacture of ZigBee Smart Energy Devices.
- "Authorized Use Notice" means a notification provided to Device manufacturers indicating that the Device contains technology owned and/or patented by Certicom and that exercise of Certicom technology requires the use of a Digital Certificate licensed by Certicom, which is set out in the USENOTICE.TXT file.
- "Authorized Users" means: (a) any of Your employees; or (b) any consultants, independent contractors and any other persons You authorize to use or to whom You otherwise make available the SDK, in each case to use on Your behalf to develop Applications.
- "Certicom Device CA" means the Certicom branded or a Certicom licensed certification authority which issues digital certificates described in the applicable ZigBee Smart Energy Profile or provides certificate services for Digital Certificates.
- "Device" means a device that implements the ZigBee Smart Energy Profile which includes the Distributable Code and a ZigBee radio used as a primary means of communication with other Devices. "Digital Certificate" means those device digital certificates described in the ZigBee Smart Energy Profile and that are issued by a Certicom Device CA pursuant to a separate Certicom Certificate Agreement for the ZigBee Smart Energy Profile.
- "Distributable Code" means Distributable Object Code and Distributable Source Code.
- "Distributable Object Code" means the object code of those components of the SDK which are listed as being authorized for distribution in the USENOTICE.TXT file and/or other similar file(s) either included as part of the SDK or otherwise provided to You, as applicable.
- "Distributable Source Code" means certain application templates, API header files, code stubs, code snippets, example applications, sample code and code fragments in source code form either included as part of the SDK or otherwise provided to You.
- "Distributor" means an intermediary entity that has entered into a license with You and is authorized to distribute Your Device containing Your Applications to the End User(s).
- "End User" means the end customer who acquires and/or purchases Your Device containing the Distributable Code from You or a Distributor for the End User's sole use with no right to further distribute the Device.
- "Open Source License" has the meaning defined in Subsection 2(e).
- "Reverse Engineer", "Reverse Engineered" and "Reverse Engineering" includes, without limitation, any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of "dumping of RAM/ROM or persistent storage", "cable or wireless link sniffing", or "black box" reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
- "SDK" or "Software Development Kit" means all software (including Distributable Code, programs, tools, sample code, templates, libraries, compiler generated assembly code and interfaces, including API header files), APIs, information, data, files, documentation, and other materials, whether tangible or intangible, in whatever form or medium, provided to You at any time, either by way of downloading from a Certicom or a Certicom affiliate website or otherwise provided to You, for the purpose of developing ZigBee Smart Energy Device(s) (unless such materials are provided pursuant to a separate license agreement for such materials by Certicom and/or its affiliates). Except as expressly specified herein, the SDK shall not include any Third Party Software. Your use of such Third Party Software shall be governed by and is subject to You agreeing to the terms of separate software license(s) for such Third Party Software. Certicom's SDKs include, without limitation, the SDKs described in Schedule 1.
- "Service" means any Certicom Device CA service provided in conjunction with the ZigBee Smart Energy Profile.
- "Third Party Component" means software, interfaces and firmware licensed by Certicom from a third party for incorporation into the SDK and distributed as an integral part of the SDK.
- "Third Party Software" means software proprietary to a third party, but shall not include Third Party Components. Certicom has no obligations to You in relation to Third Party Software.
- "Updates" means bug fixes, service packs, hot fixes, updates, upgrades, enhancements, modifications, and new releases or versions of the SDK.
- "ZigBee Alliance" means the non-profit mutual benefit corporation of that name organized under the laws of the State of California.
- "ZigBee Smart Energy Device" means a Device which the ZigBee Alliance has confirmed to Certicom has been manufactured by You and has passed ZigBee Smart Energy Profile testing, as conducted by an authorized ZigBee Alliance testing organization.
- "ZigBee Smart Energy Profile" means the ZigBee Smart Energy Profile 1.x specifications and any other certificate specifications which requires the use of a Digital Certificate and are agreed to in writing between Certicom and the ZigBee Alliance.
- 2. License and License Restrictions
- Subject to the terms and conditions herein, Certicom grants You a personal, revocable, non-exclusive, royalty free, non-transferable license to install and use a reasonable number of copies of the SDK to be used solely in the manner described in the documentation contained in the SDK and solely for the purposes of developing, testing and debugging Applications (the "License"). You may not copy the SDK or any portion thereof except as expressly permitted herein. For the purposes of this provision "copy" shall not include copying of statements and instructions of the SDK or any portion thereof that naturally occurs during normal program execution when used in accordance with and for the purposes described in the documentation or in the course of making unmodified copies of the SDK or documentation as part of the regular back-up of the SDK in accordance with standard industry business practices. In addition to the foregoing, you may not use the SDK to issue digital certificates or provide products to third parties that enable such third parties to issue digital certificates (including Digital Certificates).
- You may only distribute Your Applications to third parties as follows: (i) to the ZigBee Alliance or an authorized ZigBee Alliance testing organization, provided that in either case such Applications are distributed as part of a Device or ZigBee Smart Energy Device, (ii) to any other third party, provided that such Applications are distributed solely as part of a ZigBee Smart Energy Device with an embedded Digital Certificate or as part of a software development kit being distributed by You solely for the purposes of developing, testing and debugging ZigBee Smart Energy Profile applications; and (iii) as otherwise authorized by an officer of Certicom in writing that specifically references this Agreement. Except as expressly set out in this Section 2(b), You shall not directly or indirectly market, rent, distribute, transfer, license, sublicense, sell, or furnish to any third party all or any part of, the SDK or copies of any part thereof.
- To the extent that Distributable Source Code is provided as part of the SDK, You may use, modify and compile the Distributable Source Code solely for the purposes of developing Your Applications.
- You may distribute any Distributable Code provided that, in addition to the restrictions set out in Section 2(b) above, You shall: (i) add significant primary functionality to it in Your Applications; (ii) distribute such code in object code or executable form only to be used solely within Your Device or Applications with a Digital Certificate; (iii) include the following copyright notice within Your Application's source code in the same locations as Your own copyright notice (and if You do not include a copyright notice, then at least on one of the packaging, manuals or "about" box): "Portions copyright © 2001-2014 Certicom Corp. All rights reserved."; (iv) include the Authorized Use Notice with Your Application; (v) not provide a separate price for or charge a license fee or royalty for the Distributable Code distinct from the fee You charge for Your Applications; and (vi) not distribute, link or integrate the Distributable Code such that any part of it becomes subject to an Open Source License. In addition You shall require End Users of Your Applications to agree to the following minimum license terms applicable to the Distributable Code: (A) the license granted is a non-exclusive, terminable license for the End User to use the Distributable Code only in conjunction with Your Application; (B) the End User acquires no intellectual property or other proprietary rights, including, without limitation, patents, designs, trademarks, copyright or rights in any confidential information in or related to the Distributable Code; (C) Reverse Engineering the Distributable Code is prohibited, except to the extent that You are expressly precluded by law from imposing such restrictions; (D) Certicom, specifically, or as one of Your suppliers, shall not be liable to the End User and/or Distributor for any damages whatsoever; (E) the Distributor shall import, export, re-export and use the Distributable Code only in accordance with the laws and regulations of the of the country(ies) and/or territory(ies) in which the Distributable Code is used, imported, exported and/or re-exported; (F) You make no warranties, express or implied, related to the Distributable Code on Certicom's behalf to Distributors and End Users of Your Applications or Your Device that include Distributable Code; and (G) the Distributors and End Users shall not alter any copyright, trademark or patent notice in the Distributable Code. For the purposes of this Agreement, an "Open Source License" is any license which requires, as a condition of use, modification, and/or distribution of any software subject to such license that such software and other software incorporated into, integrated with, derived from and/or distributed with such software be: (1) disclosed or distributed in source code form; (2) licensed for the purposes of making modifications or derivative works; (3) permitted to be Reverse Engineered; (4) reproduced and/or redistributed at no or minimal charge; and/or (5) otherwise distributed on terms that impede the ability to distribute and license such software as the licensor of such software sees fit.
- You must require Distributors and End Users of Your Applications, in the license terms applicable to Your Applications, to agree to a prohibition on Reverse Engineering Your Applications, except to the extent that You are expressly precluded by law from imposing such restriction.
- 3. Certification.
You acknowledge and agree that You are solely responsible for obtaining any certification required for Your Devices. You further agree that Certicom shall have no liability whatsoever to any third party for any claim or action relating to any of Your Applications.
- 4. SDK Updates and Support.
Certicom does not provide any form of technical support to You for the SDK pursuant to this Agreement. Certicom may make SDK technical support available to You for a fee, under the terms of a separate technical support agreement. Certicom is under no obligation to provide You with any Updates. However, if Certicom does provide You with any Updates, such Updates shall be subject to the terms and conditions of this Agreement (including the License) or such agreement, if any, which accompanies such Updates, including a possible requirement to make payments to Certicom in respect thereof.
- 5. Use of SDK.
You are responsible for all activities with respect to the SDK undertaken by You and Your Authorized Users and You will ensure that:
- You and Your Authorized Users will only use the SDK in accordance with this Agreement, all applicable laws and regulations, and the documentation provided by Certicom as part of and for use in conjunction with the SDK and subject to the limitations around the use of Digital Certificates;
- You have the right and authority to enter into this Agreement, either on Your own behalf or on behalf of a company or other entity, and You are over the age of majority;
- Any information that is provided to Certicom in relation to this Agreement is true, accurate, current and complete;
- You and Your Authorized Users will not use the SDK to develop any Applications which are intended to be used to commit or would be used predominantly to commit any crime or other illegal or tortious acts in the jurisdiction in which You or Your distribution channels distribute that Application;
- You are expressly prohibited from issuing a Digital Certificate or from creating an Application which issues or signs Digital Certificates; and
- You will cooperate with Certicom and provide information requested by Certicom to assist Certicom in investigating or determining whether there has been a breach of this Section 5 or any other provision of this Agreement and upon request provide Certicom with access to the premises and computers where the SDK is or has been used. You hereby authorize Certicom to cooperate with: (1) law enforcement authorities in the investigation of suspected criminal violations; and (2) third parties in investigating acts in violation of this Agreement. Such cooperation may include Certicom providing Your username, IP address or other identifying information.
- 6. Intellectual Property.
This Agreement does not transfer or assign to You, any intellectual property right including any patent, design, industrial design, trademark, service-mark, copyright or rights in any confidential information or trade secrets, in or related to the SDK or any part thereof. The SDK and all copies thereof remain the property of Certicom and are licensed and not sold to You under this Agreement. You acknowledge that there are no implied licenses granted under this Agreement, and all rights, save for those license rights expressly granted to You hereunder, shall remain with Certicom. This Agreement only provides a license for the SDK itself and You may need licenses, including without limitation patent and copyright licenses from Certicom and from third parties, to use, manufacture, reproduce or distribute Your Applications, and You agree that Certicom has no obligation to You with respect to providing notice of or acquiring such licenses. You agree that nothing in this Agreement shall adversely affect any rights and recourse to remedies, including without limitation, injunctive relief that Certicom may have under any applicable laws relating to the protection of Certicom's intellectual property or other rights.
- 7. Feedback.
You and Your Authorized Users may provide Certicom with feedback on the SDK, including, without limitation, feedback on bugs and faults within or relating to the SDK or suggestions for improvements or other changes to the SDK. You hereby agree that Certicom shall own all feedback, ideas, concepts and changes to any portion of the SDK developed or identified in the course of or as a result of Your use of the SDK and all associated intellectual property rights ("Results"), and You hereby assign to Certicom all of Your right, title and interest thereto. You will not knowingly provide Certicom Results that are subject to third party intellectual property rights. You agree to cooperate fully and to ensure that Your employees, officers, independent contractors and Your Authorized Users cooperate fully with Certicom with respect to signing further documents and doing such other acts as are reasonably requested by Certicom to confirm that Certicom owns the Results, and to enable Certicom to register and/or protect any associated intellectual property rights and/or confidential information.
- 8. Export Restrictions; U.S. Government Rights.
You acknowledge that the SDK, including without limitation the Distributable Code, may include encryption software that may be subject to export, import, and/or use controls by Government Authorities (as hereinafter defined) by way of law or regulation. You agree that the SDK will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the SDK is being exported or to which the SDK is being imported (collectively, the "Government Authority(ies)"). Without limitation, the SDK will not be exported: (i) to any country on Canada's Area Control List; (ii) to any country subject to UN Security Council embargo or action; (iii) contrary to Canada's Export Control List Item 5505; (iv) to countries subject to U.S. economic sanctions and embargoes; and (v) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items. If You have any questions regarding this Section 8, please contact Certicom at email@example.com. You hereby represent that: (1) to the best of Your knowledge You are eligible to receive the SDK under applicable law; (2) You will not use the SDK in the development, production, handling, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or their missile delivery systems, or of materials or equipment that could be used in such weapons or their missile delivery systems, or resell or export to anyone or any entity involved in such activity; and (3) You will ensure that Authorized Users use the SDK in accordance with the foregoing restrictions. You hereby agree to indemnify Certicom and its affiliates from any claims, actions, liability or expenses (including reasonable lawyers' fees) resulting from Your failure to act in accordance with the acknowledgements, agreements, and representations in this Section 8. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if You are any agency of the government of the United States of America, then Your rights in respect of the SDK shall not exceed the rights provide under this Agreement, unless expressly agreed upon by Certicom in a written agreement, signed by an officer of Certicom, between You and Certicom that references this Agreement.
- 9. Confidentiality.
- You acknowledge and agree that the SDK was developed at considerable time and expense by Certicom and contains valuable trade secrets and confidential information of Certicom. Accordingly, You agree to maintain the SDK in strict confidence and except as expressly provided in Section 2, You: (i) will not disclose or provide access thereto to any person except to Authorized Users with a need for access to exercise the License granted herein or; (ii) use the SDK for any purpose not expressly authorized hereby, or permit or authorize any other person to do so.
- The restriction in Subsection 9(a) shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of Yours. Any combination of Certicom trade secrets and information that forms part of the SDK shall not be deemed to be public merely because individual parts of the SDK are in the public domain, unless the combination itself is in the public domain.
- You agree that, except to the extent that Certicom is expressly precluded by law from prohibiting You and Your Authorized Users from doing so and except as expressly authorized in this Agreement, You and Your Authorized Users will not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble or Reverse Engineer the SDK, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same. Except as expressly provided in Section 2, You do not have the right to obtain or use any source code for programs included in the SDK.
- 10. Term.
This Agreement shall be effective upon Your agreement to be bound by the terms of this Agreement, (as manifested by the conduct described in the first paragraph above) and shall end upon termination of this Agreement in accordance with the provisions set out herein. Unless otherwise authorized by Certicom and subject to Section 13, You must destroy all copies and component parts of the SDK licensed under this Agreement within one (1) week of the termination of this Agreement, and You may be required to provide proof of such destruction to Certicom. Upon the termination of this Agreement the License shall immediately terminate and You shall promptly stop all use of the SDK.
- 11. Termination.
Any breach of this Agreement could cause Certicom irreparable harm and You agree that Certicom may obtain a temporary or permanent injunction against any breach or threatened breach thereof. If You or any Authorized User breach any provision of this Agreement, Certicom may terminate this Agreement and the License granted hereunder, by delivering notice of termination to You. You will be deemed to be in breach of this Agreement if: (a) You fail to comply with or perform a term or condition herein; or (b) You or any Authorized User directly interferes with the Certicom Device CA or business operations; or (c) You materially breach any other agreement that You may have with Certicom. Certicom may also terminate this Agreement if Certicom is prevented from providing any portion or all of the SDK by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body. Nothing herein shall be construed to require Certicom to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. You may terminate this Agreement, for convenience, at any time, upon providing written notice to Certicom. In addition, Certicom reserves the right to terminate this Agreement on thirty (30) days notice to You for any reason whatsoever, provided that if there has been no allegation of wrongdoing on Your part or in relation to the use of Your Applications, Certicom shall provide a reasonable period for You and Your Distributor(s) to continue to distribute any Distributable Code that is embedded in Your Applications at the time of termination, provided You continue to do so in accordance with the terms of this Agreement as if it were still in effect. For clarity, Your Devices sold prior to the termination of this Agreement shall not be affected by the termination of this Agreement. Certicom shall not have any liability to You or Your Authorized Users arising from or related to the termination of this Agreement or the License for any reason. No remedy herein conferred upon Certicom is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. In the event of the termination of this Agreement pursuant to this Section 13 for cause, You shall pay to Certicom all reasonable attorney fees, collection fees, and related expenses, expended or incurred by Certicom in the enforcement of any right or privilege hereunder.
- 12. Indemnity/Liability.
You shall defend, indemnify, and hold harmless Certicom, Certicom's successors, affiliates, agents and assigns and their respective directors, officers, employees and independent contractors (each a "Certicom Indemnified Party") from any claims, costs, damages, losses, settlement fees, and expenses (including without limitation attorney fees and disbursements) incurred directly or indirectly by a Certicom Indemnified Party as a result of Your or Your Authorized Users' breach of this Agreement and/or as a result of any claim, suit, judgment, settlement, or cause of action: (a) alleging the infringement, violation or misappropriation of any intellectual property right including a patent, design, industrial design, copyright, trade secret or trademark or other proprietary right by: (i) Your Application(s) or the use thereof, or the combination of Your Application(s) with any other hardware, software, system, or service, or (ii) Your or Your Authorized Users' combination of the SDK or any portion thereof with any hardware, software, or system or service; (b) alleging libel, slander, or defamation related to the use of Your Applications; (c) alleging any injury, death or property or other damage arising from or related to the performance or non-performance of any portion of the SDK or Your Applications; or (d) otherwise related to or arising from Your or Your Authorized Users' use of the SDK or any use or distribution of Your Applications (including Your development of Applications) or any portion thereof.
- 13. EXCLUSION OF WARRANTIES AND CONDITIONS.
CERTICOM IS PROVIDING THE SDK "AS IS". CERTICOM MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR RELATED TO THE SDK, ITS PERFORMANCE, OR ITS FAILURE TO PERFORM. THE PARTIES ALSO AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT ("UCITA") AS ENACTED IN ANY STATE SHALL NOT APPLY TO THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW UCITA IS HEREBY EXCLUDED IN ITS ENTIRETY FROM APPLICATION TO THIS AGREEMENT. YOU AGREE TO ASSUME ALL RISKS ASSOCIATED WITH YOUR AND YOUR AUTHORIZED USERS' USE OF THE SDK. YOU ARE RESPONSIBLE FOR TAKING PRECAUTIONARY MEASURES TO PREVENT THE LOSS OR DESTRUCTION OF YOUR DATA AND DATABASES SUCH AS, FOR EXAMPLE, MAKING REGULAR BACK-UPS AND VERIFYING THE RESULTS OBTAINED FROM USING THE SDK, AND CERTICOM SHALL HAVE NO OBLIGATIONS OR LIABILITY WHATSOEVER WITH RESPECT TO ANY SUCH LOSS OR DESTRUCTION. YOU ACKNOWLEDGE THAT THE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS AGREEMENT REFLECT THE FACT THAT THE SDK IS MADE AVAILABLE TO YOU AT NO CHARGE, AND THAT CERTICOM WOULD HAVE TO CHARGE FOR THE SDK IF THESE LIMITATIONS AND EXCLUSIONS WERE NOT IN PLACE.
- 14. EXCLUSION OF LIABILITY.
IN NO EVENT SHALL CERTICOM BE LIABLE FOR ANY DAMAGES WHATSOEVER DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO CERTICOM.
- 15. LIMITATION OF LIABILITY.
IN NO EVENT SHALL CERTICOM BE LIABLE FOR ANY DAMAGES THAT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SDK, THE SUM OF TWO-HUNDRED AND FIFTY CANADIAN DOLLARS.
- 16. Application.
The limitations, exclusions and disclaimers set out in this Agreement shall apply: (a) whether an action, claim or demand arises from a breach of warranty or condition, breach of contract, tort (including negligence), strict liability or any other kind of civil or statutory liability connected with or arising out of this Agreement; (b) to Certicom and its affiliated companies as well as Certicom's and such affiliated companies' directors, officers, employees, independent contractors and suppliers.
- 17. EXCEPTIONS.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.
- 18. Consent to Collection of Information.
- 19. Assignment and Delegation.
Certicom may assign this Agreement without notice to You. You shall not assign this Agreement or Your rights hereunder without the prior written consent of Certicom (such consent may be withheld or conditioned at Certicom's sole discretion) and any assignment without Certicom's prior written consent shall be null and void and of no effect. Certicom may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its affiliates, contractors or subcontractors.
- 20. Nature of Relationship.
This Agreement shall not create or be construed as creating a joint venture, co-ownership, partnership, or agency relationship between You and Certicom. Neither Party will have authority to or will hold itself out as having any authority to incur, assume, or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of, or on behalf of, or in any way binding upon, the other.
- 21. Notices.
Any notice, request, demand or other communication required or permitted hereunder will be in writing and shall be sufficiently delivered to You if delivered by hand or sent by double registered mail, courier, facsimile (provided that the receiver acknowledges receipt of the facsimile or Certicom has a facsimile confirmation) or email addressed to the last address or email address provided to Certicom by You or on Your behalf. No notice shall be binding on Certicom unless delivered by courier to Certicom, addressed to Certicom's legal department at 4701 Tahoe Blvd., Bldg A, Mississauga, ON L4W 0B5.
- 22. General.
- Third Party Beneficiaries. Certicom's affiliates and its affiliates' directors, officers and employees thereof are intended third party beneficiaries for the purposes of Sections 12-17. Except as other specifically stated in this Section, the provisions hereof are for the benefit of the parties and not for any other person or entity.
- Waivers of Default. No party is to be deemed to have waived or forfeited any right under this Agreement, whether on the basis of failure, delay or any other legal or equitable doctrine, unless such waiver is made in writing signed by an authorized signatory of the party against whom the waiver is sought to be enforced. Waiver of any provision, or any breach of any provision, of this Agreement in one instance shall not constitute a waiver as to any other instance.
- Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this Agreement. Without limiting the generality of the foregoing, the provisions of Sections 1, 8, 10-18, 21, this Section 22 and Subsection 2(e) shall survive the termination or expiration of this Agreement.
- Governing Law and Dispute Resolution. If You reside in Canada and the SDK is shipped or delivered to You in any format in Canada, this Agreement is to be governed by and construed under the laws of the Province of Ontario. Otherwise, this Agreement is to be governed by and construed under the laws of the State of New York, excluding any body of law governing conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Any disagreement or dispute arising out of, or relating to, this Agreement or the breach thereof, which the parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the parties. The parties, through their upper management level presentatives shall meet within thirty (30) days of the dispute being referred to them and if the parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in Your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the Commercial Rules of the American Arbitration Association ("Rules") and shall be heard by one arbitrator appointed in accordance with the said Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in Your jurisdiction, the arbitration shall be: (i) held in Your jurisdiction; (ii) settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules"); and (iii) heard by one arbitrator appointed in accordance with the ICC Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but You, may be joined or combined together, without the prior written consent of Certicom. Judgment upon the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. Notwithstanding the foregoing, Certicom has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding Your violation or threatened violation of Sections 2, 5-9 of this Agreement. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario or the State of New York, as the case may be, for any such claims arising from or related to this Agreement. The parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement. Unless, and only to the extent, prohibited by law in Your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including, without limitation, any correspondence, discovery, submissions, filings, pleadings, oral pleadings and arguments, and orders or judgments.
- Severability. To the extent any provision or portion thereof of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that provision or portion thereof will not affect: (a) the legality, validity or enforceability of the remaining provisions of this Agreement; or (b) the legality, validity or enforceability of that provision in any other jurisdiction, and that provision (or portion thereof) will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
- Inconsistency. If there is any inconsistency between this Agreement and any software license or End User agreement provided with any portion of the SDK, the provisions of this Agreement shall apply to the extent of the inconsistency. If there is any inconsistency between this Agreement and any software license or end user agreement provided in connection with any Updates to the SDK, the provisions of such other license or end user agreements shall apply to the extent of the inconsistency.
- Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between the parties relating to the SDK other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous provisions, understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the parties, whether oral or written, with respect to the subject matter hereof, and You acknowledge that You have not relied on any of the foregoing in agreeing to enter into this Agreement. This Agreement may be amended at any time upon mutual agreement by the parties. Except to the extent that Certicom is expressly precluded by applicable law, Certicom further reserves the right to make changes to this Agreement either to reflect changes in business practices, or to reflect changes in or required by law, by providing You with reasonable notice of the change either electronically (as contemplated by Section 21) or by posting notice of the change at http://www.certicom.com/index.php/legal. If You continue to use the SDK more than sixty (60) days after notice of the change has been given or You do not contact firstname.lastname@example.org within sixty (60) days after notice of the change has been given to inquire as to Your options, You shall be deemed to have accepted this change.