Accept License Agreement

XMOS DESIGN FILES LICENSE AGREEMENT 1. Agreement 1.1. BY ACCESSING, USING, INSTALLING AND/OR DOWNLOADING THE XMOS DESIGN FILES, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO THESE, DO NOT ATTEMPT TO ACCESS, USE, INSTALL AND/OR DOWNLOAD THE XMOS DESIGN FILES. 2. Parties 2.1. This license agreement (“Agreement”) is a legal agreement between you (acting in your individual capacity or on behalf of a legal entity) (“Customer" or “you”) and XMOS LIMITED Company No. 05494985 of 5th Floor, Programme, 1 All Saints' St, Bristol, United Kingdom, BS1 2LZ (“XMOS”, “us" or ”we"). 2.2. If you are entering into this Agreement on behalf of another legal entity such as a company, partnership, university, college etc. (for example, as an employee, student or consultant), you warrant that you have authority to bind that entity. 2.3. The Agreement includes the License as defined below. 3. Definitions 3.1. “Customer’s PCB Design” means the design of the Customer’s PCB. 3.2. "License" means the licence of the XMOS Design Files granted in this Agreement. 3.3. “PCB” means a printed circuit board. 3.4. "XMOS Hardware" means any XMOS devices supplied or made available by XMOS from time to time including the xCORETM XS1 multicore controllers, the xCORE-200TM multicore microcontrollers and VocalFusionTM voice processors. 3.5. "XMOS Design Files" comprises the schematics, gerbers, bill of materials, drill data files, netlist files, ODB++ files, Altium Designer files made available via the XMOS website at www.xmos.com to the Customer to design PCB’s which incorporate the XMOS Hardware. 3.6. The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement. 3.7. Unless the context otherwise requires: 3.7.1. references to XMOS and the Customer include their permitted successors and assigns; 3.7.2. references to statutory provisions include those statutory provisions as amended or re-enacted; and 3.7.3. references to any gender include all genders. 3.8. Words in the singular include the plural and in the plural include the singular. 3.9. Any reference to “including” shall be without limitation to the words which follow it. 4. License 4.1. In consideration of the Customer agreeing to be bound by this Agreement and for other good and valuable consideration, the receipt and sufficiency of which XMOS acknowledges, XMOS grants the Customer a non-exclusive, personal, non-sublicensable, royalty free, non-transferable, worldwide license to copy, use and incorporate all or part of the XMOS Design Files to the Customer’s PCB Design solely for use with the XMOS Hardware. 4.2. Where the XMOS Design Files are made available in Altium data file format, Customers should review the licence terms at www.altium.com to assess if they require a licence to use the XMOS Design Files in conjunction with the Customer’s PCB Design. 5. Restrictions On Use 5.1. Customer shall not: 5.1.1. use the XMOS Design Files in any way for the purpose of designing or manufacturing any products that compete with or copy in whole or in part the XMOS Hardware; 5.1.2. use the XMOS Design Files other than as expressly permitted in clause 4.1; 5.1.3. distribute the XMOS Design Files to any third party and shall ensure all third parties who need access to the Design Files or to carry out any of the activities stated in 4.1, have downloaded and accepted this Agreement; 5.1.4. remove any copyright notices in the Design Files; 5.1.5. copy or reproduce the Design Files except where such copying or reproduction is necessary and limited to the amounts required pursuant to clause 4.1, except where such copying is incidental or necessary for back up. 6. Term 6.1. Subject to clause 13 below, this License shall be perpetual. 7. Export Controls 7.1. The Customer shall use the XMOS Design Files in accordance with all applicable import and export control laws and regulations of the country in which it resides and of the United States and the UK, without limitation. 7.2. The Customer shall not export or re-export the XMOS Design Files to any person or country prohibited under United States or UK export control laws and regulations. 7.3. The Customer acknowledges that it is its responsibility to obtain copies of and to familiarise itself fully with these laws and regulations to avoid violation. 7.4. Customer shall indemnify XMOS against any breach of this clause 7. 8. Support 8.1. XMOS may provide support for the XMOS Design Files pursuant to a separate support agreement. 9. Warranty and Disclaimer 9.1. The XMOS Design Files are provided "AS IS" without a warranty of any kind. The Customer's exclusive remedy under this Agreement, shall be the correction of defects in media or replacement of the media. 9.2. Whilst XMOS gives the Customer the right to design their own development PCBs to work with XMOS Hardware, the behaviour and security of applications when on the XMOS Hardware is the Customer's own responsibility and any breach of security will not be deemed a defect or failure of the XMOS Design Files or XMOS Hardware. XMOS shall have no liability whatsoever in relation to any costs, damages or other losses Customer may incur as a result of any breaches of security in relation to Customer’s applications. 9.3. XMOS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY/SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID UNDER APPLICABLE LAW. 10. High Risk Activities 10.1. The XMOS Design Files and the XMOS Hardware are not designed or intended for use in conjunction with high risk, critical applications or technology, or on-line control equipment in hazardous environments requiring fail-safe performance, including use in military, aerospace, automotive or medically related functions (collectively "High Risk Activities") in which the failure of the XMOS Hardware and/or the Customer’s PCB Design could lead directly to death, personal injury, or severe physical or environmental damage. Any such use in High Risk Activities by Customer shall be at its own risk. 10.2. XMOS and its licensors specifically disclaim any express or implied warranties or conditions relating to any use of the XMOS Design Files and XMOS Hardware in conjunction with High Risk Activities. 11. Liability 11.1. To the extent not prohibited by applicable law, neither XMOS nor its affiliates or licensors shall be liable for any lost revenue, business, profit, contracts or data, administrative or overhead expenses, or for special, indirect, consequential, incidental or punitive damages however caused and regardless of the theory of liability arising out of this Agreement, even if XMOS has been advised of the possibility of such damages. In no event shall XMOS's or its licensors’ aggregate liability to the Customer whether in contract, tort (including negligence), or otherwise exceed £1 (one pound sterling). 11.2. Any claim against XMOS under or in connection with this Agreement must be filed within 12 months from the date of the event giving rise to such claim and XMOS shall not be liable for any claim for damages or otherwise whatsoever brought or filed after the aforementioned period. 11.3. Nothing in this Agreement shall limit or exclude XMOS’s liability for death or personal injury resulting from: (a) XMOS’ negligence; (b) fraud; or (c) any other liability that cannot be excluded or limited by English law. 11.4. Customer agrees to indemnify, hold harmless, and defend XMOS and its licensors from and against any claims or lawsuits, including attorneys' fees and any other liabilities, demands, proceedings, damages, losses, costs, expenses, fines and charges which are made or brought against or incurred by XMOS as a result of your use of XMOS Design Files, including any development or derivative work from the XMOS Design Files, the Customer’s PCB Design and any breach or non-performance of this Agreement. 12. Ownership of Intellectual Property 12.1. Customer shall not use any trademarks or tradenames of XMOS without the prior written agreement of XMOS. 12.2. The copyrights and all other intellectual and industrial property rights with respect to the XMOS Design Files, including the methods and techniques on which they are based and any patents or patent applications regarding or mapping onto the XMOS Design Files or the XMOS Hardware are owned by and retained by XMOS and/or its licensors as applicable. Nothing in this Agreement serves to transfer such rights. 12.3. Customer may not sell, mortgage, sublicense, lend or transfer possession of the XMOS Design Files in any way whatsoever to any third party who is not bound by this Agreement. 13. Termination 13.1. XMOS may terminate the License and/or this Agreement by giving 30 days’ written notice. 13.2. Either party may terminate the License and/or this Agreement immediately at any time on written notice to the other if the other party: 13.2.1. is in material or persistent breach of any of the terms of this Agreement; or 13.2.2. is unable to pay its debts as they fall due, or suspends payment of its debts, or becomes bankrupt, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction. 13.3. Termination by either party in accordance with the rights contained in this clause 13 shall be without prejudice to any other rights or remedies of that party accrued prior to termination. 13.4. On termination for any reason: 13.4.1. all rights granted to the Customer under this License and/or Agreement shall cease; 13.4.2. the Customer shall cease all activities authorised by this Agreement; 13.4.3. the Customer shall immediately pay any sums due to XMOS under this Agreement; and 13.4.4. the Customer shall immediately destroy or return to the XMOS (at the XMOS´s option) all copies of the XMOS Design Files then in its possession, custody or control; and in the case of destruction, certify to XMOS in writing, that it has done so. 13.5. Clauses 7, 9, 10, 11, 12, 15, 16, 21 and 22 shall survive any effective termination of this Agreement. 14. Third Party Rights 14.1. No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party. 15. Confidentiality and Publicity 15.1. All XMOS intellectual property rights, the Design Files and all feedback provided to XMOS under this Agreement are deemed “XMOS Confidential Information”. Customer shall not disclose any XMOS Confidential Information to any third party without prior written approval from XMOS. Customer shall not copy, adapt, or otherwise reproduce the XMOS Confidential Information save as is strictly necessary for the purposes of the License. Customer undertakes that it will respect and preserve the confidentiality of the XMOS Confidential Information indefinitely after the date of such disclosure, and such undertaking shall continue beyond termination of this Agreement. 15.2. The obligations contained in this clause shall not apply, or shall cease to apply, to such part of the XMOS Confidential Information that the Customer can show to the reasonable satisfaction of XMOS: 15.2.1. has become public knowledge other than through the fault of Customer; 15.2.2. was already known to Customer prior to disclosure to it by XMOS without any obligations of confidentiality; 15.2.3. is subject to a valid court order, provided Customer: (i) promptly notifies XMOS of the pending disclosure subject to such valid order in writing and gives XMOS the opportunity to obtain a protective order or otherwise to protect the confidentiality of the XMOS Confidential Information; and (ii) minimises the amount of XMOS Confidential Information which is disclosed under the valid court order, whilst still complying with such court order; and/or 15.2.4. has been received from a third party who has not directly or indirectly breached any duty or obligation of confidence. 15.3. The terms of this Agreement are confidential and may not be disclosed by the Customer without the prior written consent of XMOS. 16. Entire Agreement 16.1. This Agreement comprise the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to their subject matter. 17. Notice 17.1. Written notice includes notice by email. Notice shall be deemed received as follows: on the day delivered if personally delivered during normal business hours; on the next business day if sent by email; and on the 5th business day following mailing by first class certified mail (or the equivalent) postage prepaid. 18. Waiver 18.1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy. 19. Audit 19.1. Customer agrees that XMOS shall, on 5 business days’ notice, be entitled to carry out an audit of Customer’s compliance with the terms of this Agreement and Customer agrees to reasonably cooperate with XMOS during such audits. 20. Assignment 20.1. The Customer shall not assign the License or this Agreement without XMOS's prior written consent. XMOS shall be entitled to assign, or deal in any other manner with any or all of its rights and obligations under this Agreement, provided that it gives prior written notice of such dealing to the Customer. 21. General 21.1. In the event of conflict, the terms of this Agreement shall prevail over any terms of supply, purchase order or other terms unless expressly stated (and unless express reference to this Agreement is made to the contrary). 21.2. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of XMOS, which is not set out in this Agreement or any document expressly referred to in it. 21.3. Customer acknowledges and agrees that XMOS may immediately seek enforcement of this Agreement by means of specific performance or injunction. 21.4. Customer shall comply with all national, state, and local laws and regulations governing the use of the Design Files in accordance with the terms of this Agreement. 21.5. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such finding shall not affect the remainder of this Agreement which shall remain in full force and effect as if the provision(s) held to be invalid or unenforceable had not been a part of this Agreement. In the event of such finding of invalidity or unenforceability, the parties will substitute forthwith the invalid, or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided. 22. Governing Law and Jurisdiction 22.1. This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.