NEOSENSORY API / SDK LICENSE AGREEMENT
PLEASE CAREFULLY READ THIS NEOSENSORY API / SDK LICENSE AGREEMENT (“AGREEMENT”) BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING THE NEOSENSORY TECHNOLOGY (AS DEFINED BELOW) AND RELATED DOCUMENTATION (AS DEFINED BELOW) DELIVERED TO YOU (“YOU” OR “LICENSEE”) BY NEOSENSORY, INC., A DELAWARE CORPORATION WITH A BUSINESS ADDRESS AT 4 WEST 4TH AVENUE, SUITE #301 SAN MATEO, CA, 94402, USA (“LICENSOR”).
BY COMPLETING ANY ACCEPTANCE PROCESS FOR THIS AGREEMENT, AND/OR DOWNLOADING OR USING THE NEOSENSORY TECHNOLOGY, YOU ARE STATING THAT YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS, DOWNLOAD OR USE THE NEOSENSORY TECHNOLOGY AND DOCUMENTATION.
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE LICENSE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS LICENSE AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS LICENSE AGREEMENT.
IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN, YOU AND LICENSOR HEREBY AGREE AS FOLLOWS:
Neosensory manufactures and distributes sound-to-touch devices which enable users to interpret sound through the sense of touch. Neosensory has developed tools that enable developers to allow their mobile applications, software and/or devices to integrate with Neosensory devices. This Agreement sets forth the terms and conditions governing Licensee’s access to and use of those tools, which include Neosensory’s application programming interface(s), other software (including, without limitation, software development kits), any accompanying or related documents, or any content made available by Neosensory to Licensee, for the purposes of (i) developing an application that interacts with Neosensory devices, and (ii) distributing that application.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensee and Neosensory agree as follows:
As used in this Agreement, the following capitalized terms shall have the following definitions:
2.1. “API” means the Neosensory application programming interface(s) that enables third parties to send custom vibration commands to Neosensory Devices via a Bluetooth or USB link.
2.2. “Applicable Law” means any federal, state, foreign, local, municipal, or other law, statute, decree, rule, permit, regulation, ruling, or requirement issued, enacted, promulgated, or otherwise put into effect by or under the authority of any governmental entity or any judicial order.
2.3. “Documentation” means textual material relating to the API, SDK and Neosensory Devices, including without limitation, books, manuals, specifications, feature description, service or operating instructions and customary end-user materials, including the online help files and other end-user instructions regarding the performance, capabilities, functionalities, features, operation, interoperability, installation and use of the API, SDK, or Neosensory Devices.
2.4. “End User” means an end user of a Licensee Application.
2.5. “Intellectual Property Rights” means any and all worldwide rights in, arising out of, or associated with intellectual property, including all rights in copyrights, works of authorship, mask works, trade secrets, know-how, patents, utility models, inventions, discoveries, trademarks, service marks, logos, Internet domain names, and any other intellectual and industrial property or proprietary rights.
2.6. “Licensee Application” means a Licensee mobile application or other Software or device provided to End Users by Licensee (other than any Neosensory Technology included therein) that integrates or interacts with the Neosensory Devices, and together with all Licensee software and computing systems used with the Licensee Applications and all Intellectual Property Rights in the forgoing, the “Licensee Technology.”
2.7. “Neosensory Devices” means Neosensory’s Buzz wristband and any new versions or upgrades thereto.
2.8. “Neosensory Technology” means, collectively, the API, SDK, Neosensory Devices, and all other Neosensory Software.
2.9. “SDK” means the Neosensory software development kit containing libraries and example applications for various platforms (Windows Python, MacOS Python, Android, and iOS) to help streamline the use of the Neosensory API.
2.10. “Software” means computer programs, source code, and executable code, whether embodied in software, firmware or otherwise, including assemblers, applets, compilers, user interfaces, libraries, tools, APIs, SDKs, protocols, or architectures.
2.11. “Specifications” means the performance, functionality, and interoperability requirements set forth in the Documentation.
2.12. “Territory” means worldwide.
2.13. “Update” means any update, upgrade, or new release of Neosensory Software.
2.1. License Grant. Subject to the terms and conditions of this Agreement, Neosensory grants to Licensee a non-exclusive, non-transferable (except as provided in Section 13.5) license, without the right to sublicense, to: (a) use the Neosensory API and SDK to develop Licensee’s Applications to access or interface with the Neosensory Devices (the “Development License”); and (b) effective upon compliance with Section 4.2 below, distribute, directly and indirectly, the Neosensory Technology solely as included in the Licensee Application in the Territory solely for use with Neosensory Devices (the “Distribution License”).
2.2. Distribution License Right to Modification. The Distribution License may, in the future, be subject to license fees as required by Neosensory from time to time. Prior to implanting any Distribution License fees, Neosensory shall provide at least ninety (90) days’ prior written notice (email to suffice), and from and after such 90-day period, Licensee’s rights under the Distribution License shall be conditioned upon Licensee paying the applicable Distribution License fees.
2.3. Revocation of Distribution License. If Distribution Licensee fees are not paid when due and as required by Neosensory, then the Distribution License shall automatically terminate. Further, if Neosensory deems, in its reasonable discretion, that the Licensee Application provides a poor user experience, does not otherwise comply with the Documentation or the requirements of this Agreement, or meet any other Neosensory requirements, it may provide thirty (30) days’ advance written notice (email to suffice) thereof to Licensee and by such notice either revoke the Distribution License or require Licensee to revise the Licensee Application to conform to Neosensory requirements.
3. RESTRICTIONS AND REQUIREMENTS
3.1. General Restrictions. Except as authorized by Neosensory in writing or by this Agreement, or as permitted by Applicable Law, Licensee will not, and will not permit, authorize, or assist any third party to:
(a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Neosensory Technology, except for any source code provided with the SDK;
(b) interfere with, modify, disrupt, or disable features or functionalities of any Neosensory Technology;
(c) circumvent any Neosensory security measures, or any measures implemented by Neosensory to monitor the use of Neosensory Technology in compliance with this Agreement;
(d) make a call to the Neosensory API that is not driven by a request from an End User or a Licensee Application, other than as part of reasonable testing of a Licensee Application with a Neosensory SDK;
(e) remove or obscure Neosensory copyright notices contained on or in any Neosensory Technology;
(f) use any Neosensory Technology to create a product or service that is substantially similar to the Neosensory Devices;
(g) sell, rent, or lease the API or SDK on a standalone basis or use the API or SDK for hosting, service provider, or like purposes; or
(h) access the Neosensory Technology for competitive analysis or disseminate performance information (including uptime, response time, and/or benchmarks) relating to the API, SDK or Neosensory Devices.
3.2 Prohibited Territories. Licensee and Licensee Affiliates shall not use any Neosensory Technology in any location other than a location included with the Territory.
3.3 Open Source Software. Licensee agrees that any software or materials which may be made available by Neosensory, or otherwise obtained or used by Licensee, subject to an open source license or other open source terms (“Open Source Software”) shall be and shall remain subject to the terms and conditions of the original providers and are not part of the Software provided by Neosensory. Licensee shall not use or combine the Open Source Software with the Software or other items in any manner that would subject the Neosensory Software source code to be made available under open source terms and conditions.
4. INTEGRATION AND TESTING
4.1 Licensee Responsibilities. Licensee shall be solely responsible for ensuring that the Licensee Application successfully interacts with or accesses the Neosensory Devices. Licensee is solely responsible for conducting its own acceptance testing in order to verify that the Licensee Application meets any requirements set out in the Documentation and functions correctly in accessing and interacting with the Neosensory Services. Licensee shall conduct such testing to ensure that Licensee Application meets such requirements.
4.2 Confirmation; Additional Testing. Upon Licensee’s conclusion of all such testing, Licensee shall notify Neosensory by sending an email to email@example.com, (“Licensee Acceptance Notice”). Following delivery of the Licensee Acceptance Notice. IN THE LICENSEE ACCEPTANCE NOTICE, LICENSEE MUST PROVIDE A VALID LICENSEE NAME, LICENSEE PHYSICAL ADDRESS, LICENSEE PHONE NUMBER AND LICENSEE EMAIL THAT WILL BE MONITORED AT ALL TIMES BY LICENSEE, AND IF, AND ONLY IF, IT DOES SO, THE DISTRIBUTION LICENSE SHALL BECOME EFFECTIVE. Neosensory may, at its option, conduct additional testing of Licensee Applications, in addition to the testing and verification Licensee has conducted, where Neosensory reasonably deems it necessary, and Licensee agrees to provide all necessary assistance, resources and materials to allow Neosensory to conduct such testing.
Application Store. In the event that Neosensory elects to create a marketplace for applications such as Licensee Applications, Licensee agrees to allow distribution of the Licensee Application through such marketplace, subject to terms and conditions as agreed upon by the Parties.
6. INTELLECTUAL PROPERTY
6.1. Neosensory Technology. As between Neosensory and Licensee, except for the limited license granted in this Agreement, Neosensory retains all right, title, and interest, including all Intellectual Property Rights, in and to all Neosensory Technology and the Neosensory Documentation.
6.2. Licensee Application. As between Neosensory and Licensee, Licensee retains all right, title, and interest, including all Intellectual Property Rights, in and to the Licensee Application, other than any Neosensory Technology included therein.
6.3. Neosensory Trademarks. Unless authorized by Neosensory in writing, Licensee will not alter any Neosensory trademark, services mark, logo or other branding elements.
6.4. Feedback. Providing feedback, comments, or suggestions about any Neosensory Technology (“Feedback”) to Neosensory is wholly voluntary. By providing Feedback, Licensee grants Neosensory a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, modify, sublicense (through multiple tiers) and otherwise exploit the Feedback (including any ideas, concepts, methods, know-how or techniques embodied in Feedback) for any purpose, without any restriction or obligation to Licensee based on Intellectual Property Rights or otherwise. Notwithstanding the foregoing, Neosensory shall not obtain any right, title or interest in any Licensee Applications or Licensee Technology as a result of any Feedback provided by Licensee.
7. REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
7.1. Representations and Warranties. Licensee represents and warrants that: (a) it is a corporation or other legal entity duly organized and validly existing under the laws of its jurisdiction of incorporation or formation and has the right, power, and authority to enter into this Agreement and perform all of its obligations under this Agreement; (b) it has taken all necessary actions for the lawful execution, delivery, and performance of this Agreement; (c) the individual executing this Agreement on its behalf has been duly authorized to do so by all necessary corporate or similar action; (d) this Agreement is legally binding upon it and enforceable in accordance with its terms; (e) the execution, delivery, or performance of this Agreement by it does not and will not violate, conflict with, or constitute a default under (i) any agreement or instrument (including corporate charter or other organizational documents) to which it is a party or by which it is otherwise bound, or (ii) any Applicable Law. Further, Licensee represents and warrants that: (w) it will comply with all Applicable Laws in the use API, SDK and the Neosensory Technology and in the operation and distribution of the Licensee Application, the collection and use of any End User Data, and the provision of any related services; (x) the Licensee Application does not and will not contain any virus or malicious code, including but not limited to codes, commands or instructions that are intended to alter, delete, erase, damage, disable, disrupt or otherwise interfere with any software, data, or information on the Neosensory Device; (y) Licensee will maintain the security of its access to the Neosensory API and use industry standard security measures to protect and securely store API keys, tokens or credentials. Licensee’s network, operating system, and the software of Licensee’s servers, databases, and computer systems must be properly configured to securely operate with the Licensee Application and store content collected through Licensee Application; and (z) Licensee has never been listed or named as, nor has it ever acted directly or indirectly for or on behalf or any person, group or entity or nation named in any Executive Order or by the United States Treasury Department or any other state or federal agency as a terrorist, or a “Special Designated National and Blocked Person,” or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Assets Control (“OFAC”) or any other governmental agency
7.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS SECTION 7, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY AND BOTH PARTIES DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATIONS OF NEOSENSORY.
8.1. Indemnification. Licensee shall indemnify, defend and hold Neosensory, its employees, agents, consultants, subsidiaries, affiliates, and licensors (each an “Indemnified Party”) harmless from and against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) (collectively, “Claims”) which Neosensory and/or any Indemnified Party may incur and that arise from or are related to: (i) Licensee’s use of any items made available by Neosensory hereunder, including the use of, and access to the API, SDK, and/or Neosensory Technology, in a way that is prohibited or restricted under this Agreement; (ii) marketing, use, and distribution of Licensee Applications; and/or (iii) any other Licensee breach of this Agreement.
8.2. Procedure. An Indemnified Party seeking defense or indemnification must promptly notify Licensee of the Claim for which it seeks defense or indemnity and will cooperate with Licensee in defending the Claim, at Licensee’s expense. A failure to provide prompt notice will only excuse Licensee’s obligations under this Section 8 to the extent the delay prejudices Licensee’s ability to defend the Claim. Licensee will have full control and authority over the defense of an indemnified Claim, except that: (a) Licensee Party must not agree to a settlement without the applicable Indemnified Parties’ prior approval, not to be unreasonably withheld or delayed; and (b) the Indemnified Parties may participate in the defense at their own expense with counsel of their choice. If Licensee fails to assume control of the defense of a Claim as provided in this Section 8, then the Indemnified Parties may defend the Claim in its sole discretion at the cost and expense of Licensee.
9. LIMITATIONS OF LIABILITY
NEOSENSORY SHALL HAVE NO DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN THE EVENT THAT THE ABOVE IS NOT ENFORCEABLE, NEOSENSORY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF AMOUNTS PAID OR PAYABLE TO NEOSENSORY UNDER THIS AGREEMENT OR $100.
10.1. Confidential Information. For the purposes of this Agreement, “Confidential Information” means the Neosensory Technology, all Neosensory Software test results, and all of Neosensory’s business, financial, contractual, marketing and/or technical information, in whatever form embodied. Confidential Information does not include any information that Licensee can demonstrate: (a) was publicly known and made generally available prior to the time of disclosure by Neosensory; (b) becomes publicly known and made generally available after disclosure by Neosensory through no breach of this Agreement by Licensee; (c) is already in the possession of the Licensee at the time of disclosure without an obligation to maintain the confidentiality of such information; (d) is obtained by Licensee from a third party who, to the Licensee’s knowledge, was not prohibited from disclosing the information; or (e) is independently developed by Licensee without use of or reference to Neosensory’s Confidential Information. Licensee is permitted to disclose Neosensory’s Party’s Confidential Information if required by law or court order so long as, to the extent legally permissible, it provide Neosensory with prompt written notice of that requirement prior to disclosure and reasonable assistance in obtaining an order protecting that information from disclosure.
10.2. Non-Use and Non-Disclosure. Licensee shall: (a) not disclose Neosensory Confidential Information except on a “need to know” basis to its officers, directors, employees, or legal or financial advisors that have agreed to the confidentiality obligations specified in this Agreement or have signed a non-disclosure agreement or have other legal or fiduciary obligations to maintain the confidentiality of the Confidential Information; (b) without the prior written consent of Neosensory, not use the Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement; and (d) exercise due care in protecting the Confidential Information from unauthorized use or disclosure with at least the same degree of care that it uses to protect its own confidential information of a similar nature (but in no event less than a reasonable degree of care).
11. TERM AND TERMINATION
11.1. Term. This Agreement commences on the date Licensee accepts this Agreement and shall continue until terminated by either Party in accordance with the terms of this Agreement (the “Term”).
11.2. Termination for Convenience. Either Party may terminate this Agreement for convenience effective ninety (90) days after the other Party’s receipt of written notice of termination. Licensee may terminate this Agreement at any time by ceasing use of the Neosensory Technology.
11.3. Termination for Material Breach. This Agreement shall automatically terminate upon Licensee’s breach, without any requirement of notice or opportunity to cure.
11.4. Termination for Insolvency. Either Party may immediately terminate this Agreement if the other Party becomes insolvent (i.e., cannot pay its debts as they become due), enters into voluntary bankruptcy, enters involuntary bankruptcy (which is not dismissed within 60 days), ceases to conduct business, or assigns its interests in this Agreement to a third-party creditor.
11.5. Termination upon Neosensory Election. Neosensory may terminate this Agreement without notice if it decides to no longer provide the API, SDK or parts thereof, which it may do in its sole discretion.
11.6. Effect of Termination. If this Agreement is terminated for any reason: (a) all licenses granted hereunder shall immediately terminate,; and (b) each Party shall promptly return to the other Party or destroy all Confidential Information of the other Party in its possession or control and provide prompt written notice (that is signed by an officer) to the other Party certifying the complete return or destruction.
11.7. Survival. Payment obligations and Sections 1, 3, 6, 7, 8, 9, 10, 11.6 and 13 will survive any expiration or termination of this Agreement. All liabilities of a Party that accrued prior to the effective date of termination, including Licensee’s obligation to pay amounts to Neosensory hereunder, shall also survive termination.
Updates. Neosensory may make Updates at any time, in its sole discretion, provided that it shall provide Licensee at least sixty (60) days advance written notice (email to suffice) of such Updates if Licensee has provided to Neosensory a valid email address pursuant to Section 4.2 above. Subject to the foregoing, Licensee must use the latest versions of all Neosensory Software made available to Licensee by Neosensory. Any modification of the Licensee Application required as a result of an Update shall be made at Licensee’s sole cost and expense.
13.1. Governing Law and Venue. This Agreement is governed and must be construed in accordance with the laws of the State of California, United States of America, and applicable federal United States law, without reference to conflict of laws rules and not including the provisions of the U.N. Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. The Parties consent to the exclusive jurisdiction of the state courts in and for Santa Clara County, California for any dispute arising out of this Agreement.
13.2. Integration. This Agreement and all exhibits to this Agreement contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter.
13.3. Waiver; Amendment. No modification, amendment, or waiver of any provision of this Agreement is effective unless in writing and signed by the parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
13.4. Equitable Relief. In the event of an actual or threatened material breach of this Agreement, irreparable harm to the other Party could result and money damages alone may not adequately compensate the non-breaching Party. In addition to all other remedies available at law, equity, or otherwise, each Party will be entitled to seek equitable relief for the enforcement of this Agreement in any court of competent jurisdiction, without being required to post a bond.
13.5. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned by Licensee, without the prior written consent of Neosensory (not to be unreasonably withheld, conditioned, or delayed); except that Licensee may assign this Agreement, in its entirety, to a successor-in-interest of Licensee’s business relating to the subject matter of this Agreement, including any division, department, or line of business of Licensee, provided that the assigning Party shall remain liable for any liabilities and obligations of the assignee until the assignee assumes all such liabilities and obligations in writing or by operation of law. Subject to the foregoing9, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of this Section will be null and void ab initio.
13.6. Notices. Except as expressly set forth herein, all notices permitted or required under this Agreement to be sent to Neosensory must be given in writing and sent by certified mail (return receipt requested), overnight courier, or delivered by hand, to the address set forth above. All such notices will be deemed to have been received. Notices to Licensee shall be sent to any email address provided by Licensee to exercise a Distribution License and shall be effective upon being sent.
13.7. Third-Party Beneficiaries. The terms of this Agreement are intended solely for the benefit of the parties and are not intended to confer on any other person the status of a third-party beneficiary.
13.8. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, to the extent reasonably practicable, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
13.9. Language. The parties prepared this Agreement in the English language, and in the event of any conflict between the English language version of this Agreement and a translation of this Agreement, the English language version will govern. Les parties ci-dessus confirment leur désir que cet accord soit rédigé en langue anglaise.
13.10. Counterparts. This Agreement and any signed instrument entered into in connection with this Agreement may be executed in two or more counterparts and by the different parties on separate counterparts, each of which when executed and delivered will be an original, but all of which together will constitute one and the same instrument. Facsimile and PDF copies of signatures shall be deemed originals for all purposes.